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Letter  from  Hon.  Theophimjs  Parsons,  L.  L.  D, 

The  emiiient  Laio  Writer  and  Professor  of  Law,  in  Harvard  University. 

Cambridgk,  November  9,  1857. 

Dear  Sir : — I  have  looked  over  the  Book  on  Pleading  you  were  good 
.enough  to  send  me,  with  great  interest,  from  the  beginning  to  the  end. 

Upon  the  general  subject,  I  could  not  say  what  I  think,  without  writing 
an  essay:  but  it  may  all  be  summed  up  in  the  principles  you  express  so 
accurately  and  concisely  on  page  49.  To  be  even  more  brief  than  you,  I 
would  f-ay : 

1st.  Common  law  pleading  was  a  natural,  rational  and  logical  system 
of  statement  and  counter  statement,  for  the  purpose  of  exhibiting  preciseh' 
the  actual  issue,  and  eliminating  every  thing  else. 

2d.  Its  rules  and  forms,  as  they  originally  stood,  were  admirably 
devised  for  this  purpose. 

?>d.  Courts  of  law  cannot  do  their  proper  work  in  a  proper  way,  except- 
ing l*y  means  of  rules  and  forms,  the  same  with  those  in  essence  and  pur- 
pose, although  they  may  be  greatly  simplified  and  improved  in  manner 
and  phrase. 

In  my  judgment,  there  never  w:is  a  time  when  the  diligent  study  of  the 
principles  of  special  pleading  would  have  been  more  profitable  than  it 
would  be  now. 

Your  work  seems  to  me  careful  and  exact;  it  indicates  learning  and 
consideration,  and  is  thoroughly  sy.'^tematic,  and  covers  the  whole  ground 
of  pleading  in  i)orsonal  actions.  I  hope  it  will  be  studied  beyond  the  pre- 
cincts of  your  own  state. 

Very  resj)(;ctfully,  <fec. 

THEOPHILUS  PARSONS. 
To  Samukl  Tvlek,  Esq. 


Letter  from  the  late  William  Curtis  Noyes, 

An  eminent  Lawyer  of  the  New  York  Bar. 

No.  265  Fifth  Avenue,  Jjor!7  29,  1861. 
My  Dear  Sir  : 

I  thank  you  for  sending  me  Mr.  Tyler's  excellent  book  on  Pleading 
in  Maryland.  Please  present  to  Mr.  Tyler  also  my  sense  of  personal 
obligation  to  him.  I  have  been  always  of  the  opinion,  that  most  of  the 
common  law  rules  of  pleading  could  be  advantageously  retained,  and  I  am 
glad  to  see,  that,  in  one  of  our  yet  sister  States,  this  has  been  done.  The 
opposite  course  has  tended  to  introduce  ignorance  and  charlatanry,  and  to 
lessen  the  learning  of  the  Bar.  May  the  Bar  of  the  Union,  yet  unite  to 
restore  the  law,  as  well  as  the  constitution,  to  its  original  integrity. 

Yours,  truly,  WM.  CURTIS  NOYKS. 

To  Daniki.  Bowlky,  Esq. 


TREATISE 


THE    MARYLAND, 


SIMPUFIED, 


PEELI31INARY    PROCEDURE 

AND 

PLEADING, 

|n  Courts  of  fato, 

BY     SAMUEL     TYLER, 

OF  TUE  MARYLAND   BAR. 


"I  entertain  n  decided  opinion  that  the  established  principles  of  pleadinfr.  whifh  compose 
what  is  called  its  science,  are  rational,  concise,  luminous,  and  ailmiraMv  .'uiaplod  to  the 
investigation  of  truth,  and  ought  consequently  to  be  very  carefully  touched  hy  the  hand  of 
innovation." 

Chie»  Justice  Kent,  1  Johns.  Reps.  471. 


PHILADELPHIA: 

T.  &  J.  W.  JOHNSON  &  CO., 

LAW   BOOKSELLERS   AND   PUBLISHERS, 

No.  535  CHESTNUT    STREET, 
r  185  7. 


Entered,  according  to  Act  of  Congress,  in  the  year  1S57, 

BV    SAMUEL    TYLER, 
lu  the  Clerk's  Office  of  the  District  Court  of  Murylauj. 


KIXQ   &  B.URD,  PRINTERS,  607   8AXS0M  ST. 


DEDICATIOX 


TO  THE   MARYLAND   BAR, 

This  book  is  dedicated,  bj  one,  who  feels  a  State  as  well 
as  a  professional  pride,  that  from  colonial  times  to  the  present 
daj,  Maryland  has  been,  and  is,  pre-eminently  distinguished 
for  able  lawyers.  It  is  hoped  that,  while  the  new  system 
of  pleading,  which  the  book  unfolds,  wdl  be  an  easier  and 
surer  means  of  administering  the  law,  than  the  old  was,  it 
will  be  also  found  a  better  discipline  for  evolving,  invig- 
orating and  sharpening  the  intellectual  faculties  of  the 
student,  as  it  conforms  legal  logic  more  nearly  to  common 
logic.  With  this  hope,  it  is  anticipated,  that  the  Bar  will, 
continue  to  be  the  leading  class  of  Maryland  citizens,  alike 
distinguished  for  legal  learning,  professional  honor,  and  a 
bland  courtesy  which  seeks  the  respect  and  the  favor  of 
the  people. 


SAMUEL  TYLER. 


* 


F>  ederlck,  MJ.,  Juhj,  1857. 


XOTE  TO  THE  BAR. 


In  tlie  performance  of  the  duty,  laid  upon  my  col- 
leagues and  myself  by  tlie  General  Assembly  of  Maryland, 
of  simplifying  the  Practice  and  Pleadings  in  the  Courts  of 
the  State,  it  was  assigned  to  me,  with  other  work,  to 
simplify  the  Pleading  in  the  Courts  of  Law.  As,  therefore, 
I  am  the  author  of  the  system  of  Simplified  Pleading,  some 
of  my  professional  brethren,  in  difierent  parts  of  the  State, 
have  persuaded  me  to  write  this  treatise  for  the  benefit  of  the 
student,  and  perhaps  the  assistance  of  the  practitioner,  of  the 
law.  As  therefore  the  treatise  has  not  been  obtruded  upon, 
the  profession,  but  yielded  at  the  solicitation  of  some  of  its 
ablest  members,  it  deserves  to  receive  the  greater  indulgence 
for  its  mau}^  imperfections.  And  while  many  of  its  defects 
are,  doubtless,  ascribable  to  my  incompetency,  I  beg,  that 
some  be  attributed  to  the  short  time  I  have  had  to  prepare 
the  work :  not  having  had  as  many  weeks,  as  I  ought  to 
have  had  months,  for  the  labor.  But  the  necessity  for  its 
immediate  use  would  not  allow  me  more  time  for  its  pre- 
paration. 

It  will  be  observed,  that  I  have  rarely  referred  to 
authorities,  in  my  exposition  of  the  doctrines  of  Pleading. 
This,  it  seemed  to  me,  was  best,  for  a  book  which  is 
designed,  to  present  the  system  of  Pleading  in  its  new 
aspect,  embarrassed,  as  little  as  possible,  by  the  old  ideas 
which  a  look  into  authorities  will  necessarily  recall  into  the 
mind.  If  any  statement  of  doctrine  be  deemed  erroneous, 
the  enlightened  practitioner  will  know  where  to  find  the 
authorities  to  correct  my  error. 


CONTENTS. 


IxTRocrcTioN n 

Parties  to  an  Action 17 


CHAPTER  FIRST. 

Procedure  Preliminary  to  Pleading... 19 

Of  Original   Writs 21 

The  Writ  of  Summons — When  the  proper  Writ — Its  form — 
What  the  Plaintiff  must  do  before  it  can  be  issued — The  service 
of  the  Writ  by  the  Sheriff — The  proper  returns— What  the 
Defendant  must  do,  when  he  has  been  summoned. 

The  Writ  of  Replevin — When  the  proper  Writ — Its  form — 
What  the  Plaintiff  must  do  before  it  can  be  issued — What  the 
Defendant  must  do — The  service  of  the  Writ  by  the  Sheriff — 
The  proper  returns,  and  their  consequences — The  Writ  re- 
newable— The  cases  where  the  Defendant  resides  in  one  juris- 
diction, and  the  goods  to  be  replevied  are  in  another — The 
practice  in  such  cases. 

Joinder  of  Parties  to  Actions 3G 

Joinder  of  Plaintiffs 3G 

The  practice  in  cases  of  non-joinder  and  mis-joTnder  of  Phiintiffs. 

Joinder  of  Defendants o'J 

The   practice   in   cases   of    the    mis-joinder    and    iioii-juindcr    of 
Defendants. 


b  CONTENTS. 

Joinder  OF  Causes  of  Action 41 

What  causes  of  Action  maybe  joined,  and  what  cannot  be  joined — 

The  practice  when  causes  of  action  cannot  be  conveniently  tried 

together. 


CHAPTER  SECOND. 

Pleading 45 

Common  law  and  Civil  law  pleading  compared — How  pleading  is 
related  to  evidence — AYhat  defects  in  pleading  the  simplification 
is  intended  to  remedy — The  Rules  and  Forms  of  Pleadings — The 
nature  of  Form. 

The  Simplified   Pleading 53 

The  Rules  of  Pleading — The  Fundamental    Rule — The  General 

Rule — An  Issue  necessarily  formed  by  the  working  of  the  Rules. 
Rules  descriptive  of  Pleadings — The  Demurrer — The  Traverse — 

The  Direct  Traverse — The  Indirect  Traverse— The  Confession 

and  Avoidance. 

Rules  for  Framing  Pleadings 75 

Of  Pleadings  in  General 77 

Rules  applicable  to  framing  all  Pleadings.     These  Rules  explained. 

Rules  applicable  to  framing  the  Declaration 90 

These  Rules  explained. 

Rules  applicable  to  framing  Pleadings,  subsequent  to  the 
Declaration 99 

These  Rules  explained. 

New  Assignment 118 

Its  nature  and  the  practice  in  regard  to  it. 

Rules  which  make  THirt.ssuE  a  Certain  one 120 

The  import  of  these  Rules  explained. 

Rules  which  make  the  Issue  a  Single  one 133 

The  meaning  of  these  Rules — The  doctrine  of  different  Counts  in 
a  Declaration  discussed. 


CONTENTS.  9 

Judgment — how  rendered 140 

Repleader — its  meaning 141 

Abatement — The  simplified  practice  in  regard  to  it 142 

Motions — The  form  in  which  they  must  be  made 144 

General  Provisional  Rules — to  supply  defects  in  the  simplified 

Pleadings , 145 


CHAPTER   THIRD. 

Forms  of  Pleadings 147 

Declarations 153 

Pleas 103 

Replications 171 

New  Assignment 172 

Pleas  in  Abatement 173 

Other  Forms  of  Pleadings 174-82 


INTRODUCTION. 


Feom  the  earliest  ages  of  English  history,  as  the  year- 
books and  the  oldest  law  treatises  show,  the  lawyers  and 
judges  of  England  gave  especial  attention  to  law  procedure, 
and  considered  skill  in  special  pleading  as  the  highest  pro- 
fessional attainment;  and  yet  so  difficult  was  it  to  mould 
and  develope  the  system  of  pleading  so  as  to  fit  it  for  the 
exigencies  of  administrative  justice,  that  pleading  did  not 
assume  anything  of  the  form  of  system,  until  the  reign  of 
Edward  the  First ;  and  was,  even  then,  only  to  be  found  in 
the  scattered  precedents  of  adjudged  cases.  In  the  reign  of 
Charles  the  Second,  a  collection  of  adjudged  points  in  plead- 
ing, classed,  without  skill,  in  alphabetical  order,  was  pub- 
lished under  the  title  of  Doctrina  Placitandi.  This  extensive 
collection  became  the  store-house  from  which  pleaders  pro- 
cured precedents.  Between  the  years  1772-77,  chief  Baron 
Comyns,  in  his  Digest  of  the  Laws  of  England,  under  the 
title,  Pleader,  gave,  to  the  use  of  the  Courts,  a  more  systematic 
compilation  of  authorities  upon  the  subject.  This  able 
digest  of  authorities  on  pleading,  was  a  great  advance  beyond 
any  previous  work.  Next,  the  critical  genius  of  Mr.  Ser- 
geant AVilliams,  in  his  masterly  notes  to  his  edition  of 
Saunders'  Eeports,  elucidated  the  principles  of  pleading,  and 
furnished  an  initial  towards  a  scientific  treatise  upon  the 
subject.  Mr.  Chitty,  availing  himself  of  the  clear  light  of 
Mr,  Sergeant  Williams'  notes,  was,  thereby,  greatly  assisted 
in  constructing  his  elaborate  and  discriminating  work,  pre- 
senting the  doctrines  of  pleading  in  a  systematic  form,  which 
was  published  in  the  year  1808.  Next  appeared  the  treatise 
of  Mr.  Stephen,  which,  starting  from  a  higher  scientific 


12  INTRODUCTION. 

view  of  pleading,  tlian  that  of  Mr,  Chitty,  aimed  at  simplify- 
ing the  system,  while  it  lighted  up  its  technical  intricacies. 
The  process  of  simplification  had  been  begun  centuries 
before,  both  by  rules  of  the  Courts,  and  by  Acts  of  Parlia- 
ment. ISIr.  Stephen  only  pointed  more  clearly  to  the  import 
and  scope  of  this  effort  on  the  part  of  Courts,  but  especially 
of  Parliament,  to  free  pleading  from  technical  refinements, 
while,  by  his  more  accurate  analysis  of  the  principles  of  the 
system,  he  showed  more  clearly,  wherein  lay  its  substantial 
merits.  His  book  was  a  vindication  of  the  excellence  of 
the  system,  before  the  contentious  criticism  of  a  restless  and 
searching  public  opinion.  He  brought  out  the  system  from 
its  theoretical  entanglements ;  and  showed  what  it  is  in  sub- 
stance, and  what  it  is  in  form ;  thereby  conducting  to  a 
simpler  and  more  enlightened  practice. 

In  considering  the  system  of  pleading,  we  must  distinguish 
between  the  rules  which  are  essential,  permanent,  and  sub- 
stantial, constituting  the  foundation  of  the  well-weighed 
policy  of  special  pleading,  which  has  stood  the  test  of  ages, 
as  the  most  efficacious  instrument  for  enabling  the  jury  to 
discharge  their  peculiar  functions;  and  other  rules  of  a  more 
arbitary,  technical,  and  artificial  kind,  which  are  founded 
on  no  great  principle  of  judicial  policy ;  but  have  been  in- 
vented only  as  auxiliary  in  framing  and  preserving  the  other 
more  substantial  rules.  This  latter  class  of  rules,  which  are 
only  intended  as  auxiliary  and  corrective,  have,  frequently, 
in  practice,  been  grievously  abused  by  being  applied  to  un- 
essential defects  in  the  form  of  pleadings,  thereby  determin- 
ing causes,  not  upon  the  merit  of  rights,  but  upon  the  tech- 
nical accuracy  of  the  manner  of  stating  them.  The  system 
of  special  pleading  could  never  have  been  built  up,  without 
these  technical  rules  requiring  the  strictest  accuracy  of  state- 
ment. Because,  there  is  no  medium  between  accuracy  and 
inaccuracy ;  and  consequently,  as  long  as  the  system  was 
being  formed  and  adapted  to  the  manifold  and  multiform 
combinations  of  facts,  which  constitute  causes  of  action  and 
defences,  no  laxity  of  statement  could  be  allowed  without 


IXTRODUOTION.  13 

danger  of  falling  into  the  greatest  looseness  and  prolixity. 
But  after  the  system  is  formed,  and  what  is  substantial,  and 
what  incidental  and  formal  only,  can  be  clearly  discriminated, 
it  is  advantageous  to  strip  off  the  technicality  which  has  now 
become  only  an  encumbrance  to  its  practical  efficiency.  This 
has  been  doing  for  centuries  ;  while  the  system  itself,  as  an 
offshoot  of  the  trial  by  jury,  and  indispensable  to  its  efficiency, 
has  been  preserved  by  the  sternest  will  of  the  judicial  and 
legislative  powers  of  the  British  government. 

There  are  two  modes  by  which  the  abusive  application 
of  these  more  technical  rules  have  been  practised  in  the  trial 
of  causes :  1.  By  demurrer :  2.  By  motion  in  arrest  of 
judgment.  The  remedies  for  the  evil,  have  therefore  been, 
from  time  to  time  directed,  in  so  limiting  the  scope  of  the 
demurrer,  as  to  diminish  its  abuse ;  and  of  lessening  the  de- 
fects that  could  be  reached  by  motion  in  arrest  of  judgment. 
Blackstone  in  speaking  of  the  earlier  and  the  later  practice, 
says:  "After  verdict  and  judgment  upon  the  merits,  they 
were  frequently  reversed  for  slips  of  the  pen  or  mis-spellings; 
and  justice  was  perpetually  intangled  in  a  net  of  mere  tech- 
nical jargon.  The  legislature  hath  therefore  been  forced  to 
interpose  by  no  less  than  twelve  statutes,  to  remedj^  these 
opprobrious  niceties ;  and  its  endeavours  have  been  of  late, 
so  well  seconded  by  judges  of  a  more  liberal  cast,  that  this 
unseemly  degree  of  strictness  is  almost  entirely  eradicated." 
The  statutes,  alluded  to  by  Blackstone,  commence  in  the 
reign  of  Edward  the  Third,  and  come  down  to  George  the 
First.  Some  of  these  statutes  make  the  verdict  cure  many 
defects  which  before  could  have  been  taken  advantage  of 
by  motion  in  arrest  of  judgment;  and  others  of  the  statutes 
so  limit  the  scope  of  the  demurrer,  that  unless  the  defects  be 
specifically  stated  in  the  demurrer,  they  could  not  be  made 
available.  These  statutes  greatly  relieved  the  system  from 
its  technical  entanglements.  And  if  we  compare  the  system 
of  pleading,  as  set  forth  in  the  work  of  Mr.  Stephen,  with 
what  it  was  just  before  each  of  these  statutes  was  passed,  we 
will  find  that  as  the  system  was  developed  by  tliu  Courts 


14  INTRODUCTION. 

and  the  bar,  it  was,  from  time  to  time,  simplified  by  these 
statutes,  until  it  had,  by  the  rules  and  the  practice  of  Courts 
in  accordance  with  the  requirements  of  these  statutes, 
attained  to  the  completeness  and  excellence  pointed  out  by 
]\[r.  Stephen. 

But  never  was  it  even  thought  of  by  the  judicial  or  legis- 
lative mind,  to  abolish  the  system  itself  of  special  pleading. 
In  the  reign  of  Elizabeth,  the  national  opinion  of  special 
pleading  is  well  expressed,  by  Sir  Thomas  Smith,  in  his 
Commomvealth  of  England.  "Having  seen,  (says  he,)  both 
i^  France  and  in  other  places,  many  devices,  edicts  and 
ordinances  how  to  abridge  process,  and  to  find  how  that 
long  suits  in  law  might  be  made  shorter,  I  have  not  per- 
ceived nor  read,  as  yet,  so  wise,  so  just,  and  so  well  devised 
a  mean  found  out  as  this,  by  any  man  among  us  in  Europe. 
Truth  it  is,  that  when  this  fashion  hath  not  been  used,  and 
those  to  whom  it  is  new,  it  will  not  be  so  easily  understood, 
and  therefore  they  may,  perad venture,  be  of  contrary  judg- 
ment ;  but  the  more  they  do  weigh  and  consider  it,  the 
more  reasonable  they  shall  find  it."  This  high  estimate  of 
special  pleading  has  always  been,  and  continues  to  be,  en- 
tertained by  the  English  nation,  as  represented  in  their 
Courts,  and  in  their  Parliament,  and  by  their  best  writers 
upon  judicial  polity. 

These  opinions  and  sentiments  of  the  English  nation  were 
brought  to  Maryland  with  the  institutions  to  which  they 
pertain.  The  Maryland  legislature,  as  early  as  the  year, 
1763,  passed  an  act  directing  the  Courts  of  law  to  give 
judgment  according  to  the  merits  of  causes,  without  any 
regard  to  such  defects  in  the  pleadings  as  had  been  matters 
of  special  demurrer.  This  was  a  step  in  the  simplification 
of  pleading,  beyond  what  had  been  done  in  England ;  yet 
it  was  only  a  step  in  the  same  direction,  being  merely  the 
abolition  of  those  technicalities,  which,  by  the  statutes  of 
Elizabeth  and  of  Anne,  were  to  be  disregarded  by  the 
Courts,  unless  objected  to  by  special  demurrer.  The  phra- 
seology of  the  act  is  borrowed  from  these  British  statutes, 


INTRODUCTION".  15 

omittino;  the  clause  whicli  leaves  the  defects  still  oIduoxIous 
to  special  demurrer. 

In  the  year  1785,  the  legislature  passed  another  act, 
allowing  "  amendments  to  be  made  in  all  proceedings  what- 
ever before  verdict,  so  as  to  bring  the  merits  of  the  question 
between  the  parties  fairly  to  trial."  In  the  year  1809, 
another  act  was  passed,  making  the  verdict  cure  all  formal 
defects  in  both  writs  and  pleadings. 

The  reform  convention,  in  the  year  1851,  introduced  into 
the  constitution,  which  they  framed  for  Maryland,  a  clause 
requiring  the  legislature,  at  their  first  session  thereafter, 
to  appoint  commissioners  to  simplify  the  Pleadings  and 
Practice  in  the  Courts  of  the  State.  In  accordance  with 
this  provision,  the  legislature,  at  the  session  of  1852, 
appointed  the  commissioners ;  and  also  passed  an  act  going 
so  far  as  to  authorise  the  original  writ  or  summons  to  "  be 
amended  from  one  form  of  action  to  another,  when  the 
ends  of  justice  require  it."  This  act,  and  all  those  which 
preceded  it,  are  a  progress  in  the  same  direction  of  the 
British  statutes  mentioned  above,  and  with  them  show 
towards  what  end,  law  reform  was,  and  had  been  long, 
striving.  It  was  endeavoring  to  rid  law  procedure  of 
the  technical  niceties  which  spring  out  of  forms  of  action. 
For  in  truth,  it  is,  out  of  forms  of  action,  that  most  of 
those  formal  niceties  spring,  the  omission  of  which  in 
pleadings  was  ground  for  general  demurrer  in  the  earlier 
practice,  and  afterwards,  under  the  statutes  of  Elizabeth 
and  of  Anne,  of  special  demurrer.  Now,  the  simplifica- 
tion, which  it  is  the  purpose  of  the  following  treatise 
to  expound,  is  only  a  further  step  in  this  groat  reform, 
which  has  been  progressing  slowly,  in  a  true  conserva- 
tive spirit,  for  centuries.  Forms  of  action  are  abolished ; 
and  thereby,  law  procedure,  and  especially  pleading,  is 
released  from  the  fetters  which  all  the  British  statutes, 
and  the  Maryland  acts  of  amendment,  have,  from  time 
to  time,  been  relaxing  and  loosening.  Instead  of  having 
the   difficulties,   if    not    impossibilities,    of    changing    one 


1()  INTRODUCTION. 

form  of  action  to  another  as  allowed  by  the  act  of  1852, 
all  that  is  now  necessary  to  enable  a  plaintift'  to  make  his 
pleadings  conform  to  the  justice  of  his  case,  is  to  amend  his 
declaration  by  simply  adding  to  it  one  or  more  counts,  as 
will  be  seen  in  the  treatise  following. 

There  is,  therefore,  no  new  or  radical  reform  ushered  in. 
The  simplification  is  only  what  the  experience  of  centuries 
has.  as  it  were,  commanded  to  be  done.  It  is  but  one  more 
step  up  the  path  of  judicial  reform.  A  reform  exactly 
parallel  has  been  effected  in  England,  abolishing  forms  of 
action,  and  simplifying  pleadings.  Maryland  is,  therefore, 
trying  no  mere  experiment;  but  is  acting  upon  the  experi- 
ence of  centuries  accommodated  to  the  exigencies  of  the 
present  times. 


uiits  fo  Eit  §.ction 


Whe2n"  application  is  made  to  a  lawyer,  for  liis  profes- 
sional advice,  the  question  arises,  wlietlier  the  right  claimed 
or  redress  sought,  if  any,  be  in  one  person  or  more  than 
one.  If  it  be  in  one,  the  action,  if  brought,  must  be  in  the 
name  of  that  person  alone ;  but,  if  it  be  in  more  than  one, 
the  action  must  be  in  the  names  of  all.  So,  on  the  other 
hand,  if  the  obligation  or  liability  be  upon  one  person  only, 
the  action  must  be  brought  against  that  person  alone;  but 
if  it  be  upon  more  than  one  person,  the  action  must  be 
brought  against  all  the  persons  bound  or  liable ;  and  if  the 
obligation  or  liability  be  both  joint  and  several,  it  may  be 
'^sued  either  way.  Hence  springs  up  the  doctrine  of  the 
joinder  of  parties.  Plaintiffs,  and  Defendants,  as  the  persons 
suing  and  sued  are  respectively  called.  But  the  doctrine  of 
parties  to  an  action  does  not,  in  strictness,  belong  to  Plead- 
ing; and  therefore,  does  not  fall  within  the  scope  of  this 
treatise.  I  refer  the  reader  to  the  first  chapter  of  the  first 
volume  of  Chitty  on  Pleading,  where  the  law  of  parties  to 
an  action  is  treated  with  great  discrimination,  great  fulness, 
and  a  learned  reference  to  authorities. 


PROCEDURE  AXD  PLEADING. 


CHAPTER  I. 

PROCEDURE    PRELIMINARY   TO    PLEADING. 

Pleading  is  so  intimately  connected  wifh  the  preliminary 
procedure,  which  takes  place  in  actions  at  law  before  the 
pleadings  begin,  that,  in  simplifying  the  pleadings  it  was 
thought  advisable,  on  account  of  its  practical  advantages, 
to  consider  the  two  subjects  together,  and  commence  with 
the  original  writ,  and  simplify  the  whole  course  of  proce- 
dure down  to  the  judgment  inclusive;  so  that  every  step, 
in  an  action  at  law,  might  be  seen,  in  the  order  in  which  it 
occurs  in  practice,  with  each  rule  and  each  form  standing 
in  its  proper  place  of  succession.  The  "^Act,  therefore, 
simplifying  Pleading,  embraces  the  preliminary  procedure 
also ;  and  I  shall  in  this  treatise  pursue  the  order  of  the 
Act,  and  consider  the  preliminary  procedure  before  I  treat 
of  Pleading.  And  as  the  Act  is  divided  into  three  chap- 
ters: the  first  embracing  the  preliminary  procedure;  the 
second  embracing  the  rules  of  pleading ;  and  the  third  em- 
bracing the  forms  of  pleading,  I  have  divided  this  treatise . 
accordingly,  and  treated  the  respective  subjects  in  three 
chapters  in  the  order  of  the  Act. 

It  is  impossible  to  understand  the  simplified  preliminary 
procedure,  which  I  now  propose  to  expound,  without  ad- 
verting to  this  procedure  as  it  stood  before  the  simplification. 

There  were,  under  the  old  system,  what  were  called  Forms 
of  Action.  Actions  at  law  arise  either  out  of  some  contract 
or  out  of  some  wrong ;  causes  of  action,  therefore,  are  classed 

*  Act  Assem.  185G,  Ch.  112. 


20  PRELIMINARY    PROCEDURE. 

under  two  headS;  those  of  contract  and  those  of  wrong. 
Each  of  these  classes  embraces  many  different  causes  of 
action.  Out  of  this  grew,  what  were  called  Forms  of  Action. 
Each  cause  of  action  was  expressed  in  j)eculiar  set  words. 
These  words  constituted  the  Form  of  action,  while  the  thing 
signified  by  them  constituted  the  Cause  of  action.  But  these 
set  words,  which  constituted  the  Form  of  action,  did  not 
give  any  definite  insight  into  the  Cause  of  action.  The 
thing  signified  by  the  set  words  was  so  vague  as  to  give  no 
available  information  as  to  what  an  action  was  brought  for. 
A  writ,  for  example,  notified  the  Defendant,  "  to  ansiver  in  a 
plea  of  iresjjass  on  the  caseP  All  the  information,  as  to  the 
cause  of  action,  was  given  in  those  words.  And  even  to 
the  lawyer,  they  meant  .almost  any  thing.  They  might 
mean  injuries  which  consist  of  a  non-feasance  or  omission; 
or  of  actual  or  implied  negligence ;  or  injuries  committed 
-by  fraud  or  deceit ;  or  injuries  to  property  of  the  Plaintiff''s 
in  the  Defendant's  possession;  or  injuries  to  reversionary 
interests;  or  injuries  to  reputation  and  other  incorporeal 
rights ;  or  injuries  affecting  the  domestic  relations ;  or  inju- 
ries effected  without  direct  interference  with  the  Plaintiff" 's 
person  or  property ;  or  all  injuries  for  which  there  was  no 
other  remedy.  The  words  "^:>?ea  of  tresiMss  on  the  case,''^ 
might  mean  any  of  these  various  causes  of  action.  And,  to 
show  how  idle  were  many  of  the  distinctions  on  which  a 
difference  in  the  Form  of  Action  was  based,  I  will  refer  to 
that  between  the  action  on  the  case  of  which  I  have  just 
spoken,  and  the  Action  of  Trespass.  The  criterion  of  dis- 
tinction was,  that  the  one  was  for  an  injury  produced  by 
immediate  force,  and  the  other  for  an  injury  produced  by 
remote  consequences  of  an  act.  If  the  Defendant  threw  a 
log  in  the  street  and  it  fell  upon  the  Plaintiff"  and  broke  his 
arm,  trespass  was  the  remedy ;  but  if  the  Plaintiff'  fell  over 
the  log  and  broke  his  arm,  the  remedy  was  case.  ^hQ  formal 
diflerence  between  these  two  actions,  consisted  in  the  inser- 
tion  or  omission  of  the  words,  '"'■  ivith  force  and  arnisP  If  the 
Plaintifi*  had  his  arm  broken  in  the  way  first  mentioned,  he 


PRELIMINARY     PROCEDURE,  21 

must  use  these  words  in  the  writ,  or  lie  would  fail  in  liis 
action ;  and  if  lie  liad  it  broken  in  tlie  way  last  mentioned, 
he  must  leave  out  these  words,  or  he  would  fail  in  his  action. 
Upon  such  distinctions  were  founded  the  Forms  of  Action ; 
and  there  was  a  distinct  Avrit  for  each  Form  of  Action. 
The  practitioner,  therefore,  had  to  determine  for  his  client 
what  was  the  Form  of  Action  suited  to  his  case.  This  fre- 
quently was  a  matter  of  difficulty,  even  when  the  precise 
state  of  facts  could  be  ascertained :  but  when  a  different 
state  of  facts,  from  that  to  which  the  Form  of  Action  had 
been  adapted,  was  proved  at  the  trial,  the  Plaintiff  must 
lose  his  case,  though  the  state  of  facts  proved  constituted  a 
good  cause  of  action.  And  every  step,  in  the  whole  course 
of  law  procedure,  including  the  pleadings  and  even  the  judg- 
ment, was  more  or  less  embarrassed  by  the  Forms  of  Action. 

The  practice  of  using  forms  of  action  in  Maryland  was 
always  absurd.  In  England  the  practice  was  sensible 
enough.  There,  an  original  writ,  showing  the  real  cause 
of  action,  issued  out  of  Chancery,  in  the  first  instance,  and 
informed  the  Defendant  for  what  he  was  sued.  A  writ,  cor- 
responding to  our  Capias  or  Summoyis,  containing  the  mere 
form  of  the  action  in  the  original  writ,  then  issued  out  of  the 
Court  to  which  the  original  writ  had  been  returned,  to  bring 
the  Defendant  into  Court.  These  original  writs  can  be  seen 
in  the  first  part  of  Stephen  on  Pleading.  They  set  forth 
the  cause  of  action  almost  as  fully  as  the  declaration.  In 
Maryland  the  original  writs  were  never  used:  but  the  Capias 
or  tSummons^  which  does  not  set  forth  the  cause  of  action, 
but  only  the  form,  issued  in  the  first  instance,  leaving  the 
party  sued  without  any  information  as  to  the  precise  cause 
of  action.  I  refer  the  student  of  law,  to  the  second  chapter  y' 
of  the  first  volume  of  Chitty  on  Pleading,  for  a  subtle,  per- 
spicuous and  learned  treatment  of  the  doctrine  of  Forms  of 
action,  which  should  be  studied,  though  it  is  now  of  no 
practical  use  in  Maryland,  as  we  shall  presently  see. 

Under  the  system  of  simplified  pleading.  Forms  of  Action 
arc  abolished:  and  there  arc  now  only  three  writs  by  which 


t 


22  PRELIMINARY     T  R  0  C  E  D  U  R  E. 

actions  are  brouglit.  These  three  writs  are  founded  on 
differences  in  causes  of  action  that  exist  in  the  nature  of 
things.  One  writ,  called  a  Summons,  applies  to  all  actions 
brought  for  the  recovery  of  money,  whether  founded  in 
'  contract,  or  in  ^\Tong;  another  writ,  called  Beplevin^  applies 
to  actions  brought  for  the  specific  recovery  of  personal  pro- 
perty ;  and  the  other  writ,  called  "Ejectment^  applies  to  all 
actions  brought  for  the  specific  recovery  of  real  property. 
The  distinctions  of  money^  personal  property^  and  real  pro- 
perty^ exist  in  nature,  and  cannot  be  confounded  in  law  pro- 
cedure, without  confusion  in  the  administration  of  justice. 
But  to  split,  the  process  to  recover  money,  into  a  great 
diversity  of  Forms  of  action,  such  as  Debt,  Covenant,  De- 
tinue, Trespass,  and  Trespass  on  the  case,  Avith  varieties 
under  the  last  two,  as  was  done  under  the  old  system  of  law 
procedure,  was  of  no  advantage,  while  it  was  founded  in  a 
subtle  artificial  theory  hard  to  be  learned,  and  still  harder 
to  be  practiced. 

Before  the  New  Constitution,  there  were  two  modes  by 
which  Defendants  were  informed,  that  an  action  at  law  was 
brought  against  them:  1.  The  Summons;  2.  The  Capias. 

The  Summons  commanded  the  Sheriff  to  notify  the  De- 
fendant to  appear  in  Court  on  a  certain  day  to  answer  the 
action  of  the  Plaintiff. 

The  Capias  commanded  the  Sheriff  to  take  the  body  of 
the  Defendant,  and  have  him  before  the  Court,  on  a  certain 
day,  to  answer  the  action  of  the  Plaintiff. 

By  the  New  Constitution,  imprisonment  for  debt  was 
abolished;  and  thereby  the  writ  of  Capias  was  abrogated. 
The  Summons  then  became  the  only  mode  allowed  by  the 
Constitution  for  bringing  an  action  at  law  to  bear  upon  a 
Defendant ;  and  thus  all  the  writs  for  instituting  actions  at 

*  This  treatise  does  not  embrace  the  procedure  in  Ejectment.  A 
special  report,  with  simplified  procedure,  has  been  made  on  Ejectment 
by  Mr.  Price,  my  colleague ;  and  in  it,  a  writ  of  Ejectment  has  been 
provided  as  the  first  step  in  the  action.  Under  the  old  law,  there  was 
no  writ ;  the  declaration  being  the  first  step. 


PRELIMINART  PROCEDURE,         23 

law  had,  before  tlie  simplification,  assumed  tlie  form  of  ttie 
Summons,  which  merely  notifies  the  defendant  to  appear  in 
Court,  and  does  not  command  his  body  to  be  taken.  The 
Act  of  Simplification,  therefore,  merely  renders  it  unneces- 
sary to  mention  any  form  or  cause  of  action  in  the  writ  of 
SuAmons ;  because  the  Summons  was  virtually  established 
by  the  Constitution,  as  the  only  writ  for  the  cases  to  which 
it  is  applied  by  the  Act  of  Simplification.  The  first  four 
sections  of  the  Act  are  in  these  words : 

1.  "All  personal  actions,  except  Eeplevin,  brought  in 
any  Court  of  Law  in  this  State,  shall  be  commenced  by 
Writ  of  Summons ;  and  the  said  writ  shall  be  issued  by  the 
clerks  of  the  said  Courts  respectively,  directed  to  the  sheriff 
or  other  proper  ofiicer. 

2.  "  It  shall  not  be  necessary  to  mention  any  Form  or 
Cause  of  Action  in  any  writ  of  summons. 

3.  "  Every  Writ  of  Summons  shall  contam  the  name  or 
names  of  the  Plaintifl"  or  Plaintiffs,  and  of  the  Defendant  or 
Defendants;  and  shall  state  the  day  and  the  place  when 
and  where  the  Defendant  or  Defendants  is  or  are  to  appear 
to  answer  the  Action ;  and  shall  bear  date  on  the  day  on 
which  the  same  shall  be  issued ;  and  shall  be  tested  in  the 
name  of  the  Judge  of  the  Court  from  which  it  shall  issue ; 
and  shall  be  signed,  and  sealed  with  the  seal  of  the  Court, 
by  the  Clerk  thereof. 

4.  "The  Writ  of  Summons  shall  be  in  the  following 
form: 

" County  {or  City)  to  wit : 

State  of  Maryland  to  the  Sheriff'  {or  other  proper  officer)  of 
greeting : 


You  arc  hereby  commanded  to  summon  {here  insert  the 
name  or  names  of  the  Defendant  or  Defendants)  of  


21  PKELIMIXARY     PROCEDURE. 

County  {or  City)  to  appeur  "before  the  (liere  insert  the  name 
of  the  Court)  to  be  held  at  (Jiere  msert  the  name  of  the  place) 
in  and  for  (Jiere  insert  the  name  of  the  County  or  City)  on  the 

day  of next,  to  answer  an  Action  at  the  suit  of 

(Jiere  insert  the  name  of  the  Plaintiff  or  Plaintiffs?) 

And  have  you  then  and  there,  this  writ.     Witness,  the 

Honorable ,  Judge  of  the  said  Court,  the day  of 

,  in  the  year  &c. 

(Signed,) 

,  Clerk." 

It  will  be  seen,  that,  by  the  third  section  of  the  Act,  the 
writ  must  be  tested  of  the  day  on  which  it  is  issued,  and 
not,  as  under  the  old  practice,  of  the  first  day  of  the  term. 
Thus,  there  is  but  one  date  to  the  writ,  serving  both  to 
show  the  day  it  issues,  and  of  its  attestation  in  the  name  of 
the  judge  of  the  Court, 

Before  the  Action  can  be  brought,  the  Plaintiff  or  his 
attorney  must  deliver  to  the  Clerk  of  the  Court,  a  Memo- 
randum in  writing,  of  the  Action  to  be  brought.  The 
Memorandum  corresponds  with  the  Titling^  as  it  was  called 
under  the  old  Maryland  practice,  and  with  the  Pr(jecijpe 
under  the  English.  It  is  an  authority  to  the  Clerk  for 
docketing  the  Action  and  issuing  the  Summons.  For,  as 
every  person,  not  under  some  personal  disability, — as  non- 
age or  coverture,  can  bring  an  Action,  it  being  ex  dehitojus- 
titice,  and  not  ex  gratia^  the  Clerk  is  bound  by  the  duty  of 
his  office  to  issue  the  Summons.  And  while  the  Memoran- 
dum imposes  a  duty  on  the  Clerk,  it  gives  him  an  authority 
to  issue  the  Summons  which  cannot  be  disputed.  The 
Memorandum  is  prescribed  and  regulated  by  the  fifth  sec- 
tion of  the  Act  of  Simplification  in  these  words : 

5.  "Before  the  issuing  of  any  "Writ  of  Summons,  the 
Plaintiff,  or  Plaintiffs,  or  his,  her,  its  or  their  Attorney,  shall 
deliver  a  Memorandum  in  writing  according  to  the  follow 
ino;  form,  or  to  the  like  effect : 


PRELIMINARY  PROCEDURE.         25 


"  A  Plaintiff  ao;ainst  C.  B.,      \      E.  S.  Clerk  of  tlie 


or 


against  0.  B.  and  D.  E         )      Issue  in  this  case. 

Brouglit  tlie day  of 18 — 

Signed " 

"  Sucli  Memorandnm  to  be  delivered  to  the  Clerk  of  tlie 
Court,  and  to  be  dated  on  the  day  of  the  delivery  thereof, 
and  signed  by  the  Plaintiff  or  Plaintiffs,  or  his,  her,  its  or 
their  Attorney." 

Thus  far,  I  have  been  showing,  what  is  required  of  the 
Plaintiff,  by  the  Statute  of  Simplification,  in  bringing  a  suit. 
I  will  now  show  what  the  Statute  enacts  in  regard  to  the 
Defendant. 

The  Defendant  does  not  become  an  actor,  or  party  to  the 
action,  until  he  has  been  legally  notified  of  it,  by  the  service 
of  the  Summons  upon  him  personally,  by  the  Sheriff  or  other 
proper  of&cer.  It  then  becomes  the  duty  of  the  Defendant 
to  answer  to  the  action,  by  appearing  to  it,  according 
to  the  mode  pointed  out  by  the  Statute  of  Simplification. 
But  it  may  happen,  that  the  Sheriff  cannot  serve  the  Sum- 
mons on  the  Defendant.  In  such  case,  when  the  Sheriff 
reports  to  the  Court,  or,  as  it  is  called,  makes  his  return,  that 
the  Defendant,  "cannot  be  found,"  as  he  is  obliged  to  do, 
on  the  return  day  of  the  Summons,  the  Action  would  be 
dead,  and  a  new  one  would  have  to  be  brought,  if  the  Sum- 
mons could  not  be  renewed  in  the  Action  already  brought. 
Accordingly,  the  writ  instituting  an  action  has  always  been 
renewable,  from  Court  to  Court,  until  the  Defendant  is 
found.  Under  the  simplified  practice,  the  renewal  of  the 
Summons  is  regulated  by  the  sixth  section  of  the  Act  of 
simplification,  whicli  is  in  these  words : 

6,  "If  any  Defendant  or  Defendants  named  in  any  writ 
of  Summons  shall  not  have  been  served  therewitli,  l)y  tlie 
return  day  of  the  Writ,  such  writ  may  be  renewed,  at  any 


26  PRELIMINARY     PROCEDURE. 

time  "before  tlie  next  term  of  the  Coiirt,  and  be  returnable 
to  tlie  same,  and  may  be  so  renewed  and  returnable  again 
to  succeeding-  terms,  as  long  as  may  be  necessary ;  and  a 
writ  of  Summons  so  renewed  sliall  remain  in  force  and  be 
available  to  prevent  the  operation  of  any  statute  whereby 
the  time  for  the  commencement  of  the  action  may  be 
limited,  and  for  all  other  purposes,  from  the  date  of  the 
issuing  the  original  writ  of  Summons." 

The  returns,  which  the  Sheriff  is  to  make  to  the  Sum- 
mons, and  the  mode  of  making  them,  are  pointed  out  by 
the  seventh  section  of  the  Act  of  Simplification  in  these 
words : 

7.  "  The  Sheriff  or  other  person  serving  the  writ  of  Sum- 
mons, shall  endorse  on  the  same,  'summoned,'  or  'cannot be 
found,'  or  '  is  dead,"  or  as  the  case  may  be." 

The  mode  of  serving  the  Summons  is  pointed  out  by  the 
eighth  section  of  the  Act  of  Simplification  in  these  w^ords : 

8.  "  The  service  of  the  writ  of  Summons  shall  be  as  here- 
tofore, personal." 

It  may  happen,  that  though  the  Defendant  has  been  sum- 
moned, he  neglects  to  appear  to  the  action.  As  imprison- 
ment for  debt  is  abolished,  there  is  now  no  mode  of  com- 
pelling the  defendant  to  appear.  The  whole  subject  of  the 
appearance  of  the  Defendant,  whether  there  be  only  one 
defendant  or  more  than  one,  and  whether  none  appear,  or 
only  some  appear,  is  regulated  by  the  ninth,  tenth  and 
twelfth  sections  of  the  Act  of  Simplification.  The  sections 
are  as  follows : 

9.  "In  any  Action  brought  against  two  or  more  Defend- 
ants, if  one  or  more  of  such  Defendants,  only,  shall  ajDpear, 
and  another  or  others  of  them  shall  not  appear :  provided 


PRELIMINARY     PROCEDURE.  27 

tlie  writ  of  Summons  has  been  served  upon  sncli  as  do  not 
appear,  it  sliall  be  lawful  for  the  Plaintiff  or  Plaintiffs  to 
declare  against  all  of  the  Defendants,  and  proceed  as  if  they 
all  had  appeared. 

10.  "  A  Defendant  or  Defendants  may  appear  at  any  time 
before  judgment;  and  if  he,  she,  or  they  appear  after  the 
time  specified  in  the  writ  of  Summons,  he,  she  or  they  shall, 
after  notice  of  such  appearance  to  the  Plaintiff  or  Plaintiffs, 
or  his,  her  or  their  Attorney,  as  the  case  may  be,  be  in  the 
same  position  as  to  Pleadings  and  other  proceedings  in  the 
Action,  as  if  he,  she,  or  they  had  appeared  in  time :  pro- 
vided always,  that  a  Defendant,  appearing  after  the  return 
day  in  the  writ,  shall  not  be  entitled  to  any  farther  time  for 
pleading  or  any  other  proceeding,  than  if  he  had  appeared 
within  the  appointed  time. 

12.  "  In  any  case  where  the  Defendant  has  been  sum- 
moned, and  does  not  appear  by  the  return  day  of  the  writ, 
the  Plaintiff'  may  proceed  as  if  he,  she  or  it  had  appeared." 

It  is  observable,  that,  by  these  sections,  whether  a  De- 
fendant appears  or  not,  if  he  has  been  summoned,  the  Plain- 
tiff can  proceed  in  his  action  and  obtain  judgment  against 
him  just  as  though  he  had  appeared. 

If  the  Defendant  does  appear  to  the  action,  he  must  do  it 
in  the  mode  prescribed  by  the  eleventh  section  of  the  Act 
of  simplification.  This  section,  which  for  the  sake  of  the 
better  logical  order,  I  am  considering  out  of  its  order  in  the 
Act,  is  in  these  words : 

11.  "  The  mode  of  Appearance  to  every  writ  of  Summons, 
shall  be  by  delivering  a  Memorandum  in  writing  according 
to  the  following  form,  or  to  the  like  effect; 


28         PRELIMINARY  PROCEDURE. 

"A  Plai ntifF against  C.B.,     \  The  Defendant  C.  B. 

or                         /  appears  in  person, 

against  C.  B.  and  another,     )  or 

or                         \  S.  T.,  Attorney  for  C.  B., 

against  C.  B.  and  others.      /  appears  for  him. 

Signed " 


Such  Memorandum  to  be  delivered  to  the  Clerk  of  the 
Court,  and  to  be  dated  on  the  day  of  the  delivery  thereof, 
and  signed  by  the  Defendant  or  Defendants,  or  his,  her,  its 
or  their  Attorney." 

The  Memorandum,  required  by  this  section,  to  be  signed 
and  delivered  to  the  Clerk  of  the  Court  by  the  Defendant 
or  his  Attorney,  like  the  one  required  from  the  Plaintifi' 
when  he  brings  his  action,  is  intended  as  a  protection  to 
both  the  Defendant  or  his  Attorney  and  the  Clerk.  Though 
of  rare  occurrence,  it  has  nevertheless  happened,  that  judg- 
ment has  been  found  confessed  on  the  docket  of  the  Court, 
by  an  Attorney,  when  he  has  declared  that  he  had  no  recol- 
lection of  any  such  action,  and  that  he  never  authorized 
the  appearance  entered  on  the  docket,  nor  confessed  the 
judgment ;  while  the  Defendant  was  wholly  ignorant  of  any 
such  action  ha-ving  been  brought  against  him.  It  is  to  pre- 
vent any  such  occurrences  as  these  and  other  difficulties, 
which  sometimes  occurred  under  the  old  practice,  that  this 
Memorandum  is  required  to  effect  an  appearance. 

I  have  now  passed,  in  review,  the  whole  law  regulating 
actions  brought  by  summons,  which  embrace  nine-tenths  or 
more  of  all  actions  at  law,  under  the  Act  of  Simplification. 
Under  the  old  practice,  with  all  the  abstruse  and  technical 
doctrine  in  regard  to  Forms  of  action,  it  would  require 
months  of  labour,  from  the  student,  to  master  the  amount 
of  practice  in  conducting  an  action,  which,  under  the  sim- 
plified practice,  he  can  acquire  in  a  few  days. 


PRELIMINARY    PROCEDURE.  29 


EEPLEYIN. 

The  next  subject  wliich  will  occupy  our  attention,  is  the 
Action  of  Replevin.  Many  changes  are  effected  in  this 
action,  by  the  Act  of  simplification.  Eei^levin  is  an  ancient 
writ,  used  from  the  earliest  times  in  England,  and  was 
brought,  with  other  legal  process,  by  our  ancestors,  to 
Maryland.  In  England  the  scope  of  the  writ  was  very 
narrow.  "  Replevin  (says  Chitty  in  the  first  volume  of  his 
Pleading)  is  now  seldom  brought  but  for  distresses  for  rent, 
damage  feasant,  poor's  rate,  &c."  In  Maryland  it  has  been 
enlarged  and  made  the  special  remedy  for  trying  the  title 
to  any  personal  property,  by  taking  it  out  of  the  possession 
of  the  person  holding  it,  and  delivering  it  to  the  person 
claiming  it ;  the  person  claiming  it  being  required  to  give 
a  bond,  before  the  issuing  of  the  writ,  to  prosecute  his  claim 
with  effect,  else  to  return  the  property  to  the  person  from 
whom  it  was  taken.  By  the  Act  of  Assembly,  1825,  Chap. 
65,  Replevin  is  also  made  a  remedy  for  the  recovery  of  an 
apprentice.  The  Act  of  Simplification  has  not  narrowed  the 
scope  of  the  writ :«  but  it  has  simplified  the  form  of  the  writ 
and  also  the  practice  under  it;  as  well  as  extended  the 
action  of  Replevin,  by  a  new  device,  to  cases  coming  under 
the  action  of  Replevin,  whicn,  on  account  of  dilficulties 
when  a  defendant  resides  in  one  Coanty  or  jurisdiction,  and 
the  goods  sought  to  be  replevied  are  in  another,  it  did  not 
seem  to  reach. 

There  are  two  commands  in  the  writ  of  Replevin :  one, 
to  replevy  and  deliver  the  property  claimed  to  the  plaintiff; 
the  other,  to  summon  the  defendant  to  appear  in  Court  to 
answer  to  the  action.  If  the  Sheriff  found  the  property,  he 
reported  or  returned,  as  it  is  called,  to  the  Court  that  he 
had  replevied  and  delivered  the  property  to  the  plaintiff. 
If  he  could  not  find  the  property,  he  reported  or  returned, 
to  the  Coui't,  that  the  property  was  eloigned,  that  is,  taken 


30  TRELIMINARY     TROCEDURE. 

away.  When  tlie  property  was  returned  eloigned^  then, 
Avhat  was  called,  an  alias  writ  of  Replevin  issued,  and  on 
the  return  of  eloigned  on  this,  a  pluries  writ  of  lieplevin 
issued,  and  on  a  like  return  to  this,  Avhat  was  called  a  Ca- 
pias in  Withernam  issued.  This  practice  is  well  discussed 
in  Evans'  Maryland  Practice. 

By  the  Act  of  Simplification  the  Alias^  Pluries^  and  Ga- 
pias  in  Withernam  writs  are  abolished;  and  upon  the  return 
of  eloigned^  the  Replevin  is  renewable  like  the  Summons : 
or  the  plaintiff'  may,  which  he  could  not  do  under  the  old 
law,  declare  only  for  damages,  and  recover  the  value  of  the 
property  instead  of  the  property  itself.  These  changes  in 
the  law  will  appear  by  t]ie  thirteenth  and  twentieth  sections 
of  the  Act  of  Simplification,  which  are  in  these  Avords : 

13.  "The  Action  of  Replevin  shall  be  brought  for  the 
specific  recovery  of  personal  property,  and  for  damages  for 
the  detention  of  the  same ;  and  in  case  of  the  property  being 
eloigned  for  damages  only,  and  costs." 

20.  "In  case  of  the  return  by  the  Sheriff  of  'Eloigned' 
to  any  Writ  of  Replevin,  the  writ  may  be  served  in  the 
same  manner  as  the  Writ  of  Summons*  and  no  alias  or 
pluries  Writ  of  Replevin,  or  Ca2nas  in  Withernam  shall 
hereafter  be  used.  And  upon  the  renewal  or  renewals  of 
such  Writ  of  Replevin,  the  fiond  upon  which  the  first  writ 
was  issued  shall  be  responsible." 

The  form  of  the  Writ  of  Replevin  as  simplified,  is  pre- 
scribed by  the  fourteenth  and  fifteenth  sections  of  the  Act 
of  Simplification,  which  are  in  these  words : 

14.  "The  Writ  of  Replevin  shall  specify  the  particular 
goods  and  chattels  to  be  replevied,  and  shall  contain  the 
name  or  names  of  the  Plaintifl:'  or  Plaintifiis,  and  of  the  De- 
fendant or  Defendants ;  and  shall  contain  a  summons  for  the 
Defendant  or  Defendants  to  appear  before  the  Court,  and 


PRELIMINARY    PROCEDURE.  31 

\ 

shall  state  tlie  time  and  tlie  place  for  sncli  appearance ;  and 

shall  bear  date  on  the  day  on  which  it  shall  be  issuied ;  and 
shall  be  tested  in  the  name  of  the  Judge  of  the  Court  from 
which  it  shall  issue ;  and  shall  be  signed  and  sealed  with 
the  seal  of  the  Court,  by  the  Clerk  thereof. 

The  Writ  of  Eeplevin  shall  be  in  the  following  form : 

" County  {or  City)  to  wit : 


State  of  Maryland  to  the  Sheriff  {or  other  p-0])er  officer) 
of ,  greeting  : 

You  are  hereby  commanded  to  replevy  and  deliver  to 
{Jiere  insert  the  name  or  names  of  the  Plaintiff  or  Plaintiffs) 
the  following  goods  and  chattels  (Jiere  insert  them)  which  a 
certain  {Jiere  insert  the  name  or  names  of  the  Defendant  or 

Defendants)  of  County  {or  City)  unjustly  withholds 

from  the  said  Plaintiff  or  Plaintiffs,  and  to  summon  the  said 
{Defendant  or  Defendants)  to  appear  before  the  {Jiere  insert  the 
name  of  the  Court)  to  be  held  at  {here  insert  the  place)  in  and 

for  {here  insert  the  County  or  City)  on  the day  of 

next,  to  answer  an  action  at  the  suit  of  {here  insert  the  name 
or  names  of  the  Plaintiff  or  Plaintiff^s.) 

And  have  you  then  and  there  this  Writ. 

Witness  the  Honorable ,  Judge  of  the  said  Court, 

the day  of ,  in  the  year,  &c. 

Signed, 

,  Clerk." 

In  order  to  bring  an  action  of  Eeplevin,  it  is  not  necessary 
to  deliver  to  the  Clerk  a  Memorandum,  as  is  required  before 
issuing  a  Writ  of  Summons ;  as  a  bond  is  required  to  be 
given,  and  this  serves  the  purpose  of  the  Memorandum. 
The  sixteenth  section  of  the  Act  of  Simplification  regulates 
the  matter,  and  is  in  these  words : 

16.  "It  shall  not  be  necessary  for  the  Plaintiff  or  Plaintiffs 
in  an  Action  of  PtC})lcvin,  to  deliver  to  the  Clei'k  of  the  Court 


32  PRELIMINARY     PROCEDURE. 

a  Memorandum  in  writing,  as  is  required  to  be  done  before 
the  issuing  of  a  Writ  of  Summons,  but  the  Writ  of  Eeplevin 
shall  be  issued  by  the  Clerk  of  the  Court,  upon  a  proper 
Bond  being  delivered  to  him,  and  the  other  pre-requisites 
of  the  law,  if  any,  complied  with." 

The  mode  of  appearance  however  is  the  same  to  a  Writ 
of  Eeplevin  as  to  a  Summons,  as  is  seen  by  the  seventeenth 
section  of  the  Act  of  Simplification,  which  is  as  follows : 

17.  "The  mode  of  appearance  to  a  Writ  of  Eeplevin  by 
the  Defendant  or  Defendants,  shall  be  by  delivering  a  Memo- 
randum in  writing  to  the  Clerk  of  the  Court,  like  the  one 
required  for  appearing  to  the  Writ  of  Summons." 

In  case  the  Defendant  when  summoned,  does  not  appear 
on  or  before  the  fourth  day  of  the  term  of  the  Court,  next 
succeeding  that  to  which  return  is  made ;  the  Court,  on 
motion  by  the  Plaintiff,  shall  enter  judgment  for  the  pro- 
perty replevied,  and  for  damages  on  proof  of  any,  and  costs. 
This  is  authorized  by  the  eighteenth  section  of  the  Act  of 
Simplification,  in  these  words : 

18.  "  In  all  actions  of  Eeplevin,  if  the  Defendant  or  De- 
fendants shall  be  returned  '  Summoned,'  and  shall  not  appear 
in  person  or  by  Attorney,  on  or  before  the  fourth  day  of  the 
term,  nest  succeeding  that  to  Avhich  such  return  shall  be 
made,  the  Court  shall  be  authorized  and  required,  on  mo- 
tion, to  enter  up  judgment  for  the  Plaintiff  or  Plaintiffs  for 
the  property  replevied,  and  for  damages  in  the  discretion  of 
the  Court,  upon  satisfactory  proof  of  any,  and  costs ;  which 
judgment  shall  be  as  valid  and  effectual,  as  any  judgment 
rendered  on  the  verdict  of  a  jury." 

The  returns  to  the  Writ  of  Eeplevin  to  be  made  by  the 
Sheriff,  are  prescribed  by  the  nineteenth  section  of  the  Act 
of  Simplification,  in  these  Avords : 


PRELIMINARY  PROCEDURE.         33 

19.  "The  Sheriff  or  other  person  serving  the  Writ  of 
Eeplevin  shall  endorse  on  the  same,  '  Keplevied  and  De- 
livered '  or  '  Eloigned,'  as  a  return  to  that  part  of  the  writ 
which  directs  the  Eeplevin ;  and  on  the  part  of  the  writ 
which  directs  the  Defendant  or  Defendants  to  be  summoned, 
the  same  returns  as  on  the  Writ  of  Summons." 

This  section  is  so  plain  in  its  import,  that  it  does  not 
need  exposition. 

Under  the  old  practice,  when  one  or  more  of  the  Defend- 
ants, in  an  action  of  Eeplevin,  resided  in  a  different  County 
from  that  in  which  the  goods  and  chattels  to  be  replevied 
were  situated,  there  was  a  difficulty,  if  not  an  impractica- 
bility, in  enforcing  the  action.  To  remedy  the  omission, 
the  Act  of  Simplification,  by  the  twenty-first,  twenty-second, 
twenty-third,  twenty-fourth  and  twenty-fifth  sections,  has 
provided  a  mode  of  proceeding  unknown  to  the  old  prac- 
tice.    The  sections  are  as  follows  : 

21.  "If,  in  any  action  of  Eeplevin,  the  Defendant  or 
Defendants,  or  any  one  or  more  of  them,  shall  reside  in  a 
diSerent  jurisdiction  or  jurisdictions  in  the  State,  from  that 
in  which  the  goods  and  chattels  to  be  replevied  are,  there 
shall,  at  the  time  the  Writ  of  Eeplevin  is  issued,  or  upon 
the  return  of  the  same,  be  a  notice  or  notices  in  writing 
sent  through  the  Post  Office,  by  the  Clerk  of  the  Court  from 
which  the  writ  issues,  to  the  Sheriff  or  Sheriffs  of  the 
County  or  Counties  or  City  in  which  the  Defendant  or 
Defendants  reside,  to  be  served  upon  the  Defendant  or 
Defendants,  notifying  him,  her,  it  or  them  that  such  writ  has 
been  issued;  and  it  shall  be  returnable  on  the  same  day 
with  the  writ,  when  it  is  issued  simultaneously  with  it,  but 
returnaVjle  at  the  next  term,  when  it  is  issued  upon  the 
return  of  the  writ. 

22.  "The  notice  required  by  the  preceding  rule  shall  be 
as  follows : 


34  PRELIMINARY    PROCEDURE. 


County  {or  City)  to  wit  :■ 


State  of  Maryland,  to  the  Sheriff  (or  other  proper  olliccr) 
of greeting : 

You  are  hereby  commanded  to  notify  {here  insert  the  name 
or  names  of  the  Defendant  or  Defendants  to  be  notified)  that 
{here  insert  the  name  or  names  of  the  Plaintiff  or  Plaintiffs) 
has  or  have  issued  out  a  Writ  of  Keplevin  from  {here  insert 
the  name  of  the  Court)  against  certain  goods  and  chattels  in 
the  County  {or  City)  aforesaid,  which  the  said  {here  insert  the 
7iame  or  names  of  the  Plaintiff  or  Plaintiffs)  says  the  said 
\liere  insert  the  name  or  names  of  the  Defendant  or  Defendants 
to  be  notified,  and  also  the  name  or  names  of  those,  if  any^  ivho 
reside  in  the  County  or  City  where  the  goods  and  chattels  are,) 
withhold  or  withholds  from  him,  her  or  them ;  and  that  he, 
she  or  they  appear  before  the  said  Court  to  be  held  at  {here  in- 
sert the  place)  on  the day  of next  to  answer  said  suit. 

And*return  you  then  and  there,  this  notice. 

Witness  the  Honorable Judge  of  the  said  Court, 

the day  of in  year,  &c. 

(Signed) 

Clerk." 

24.  "Before  the  issuing  of  any  Notice  in  an  Action  of 
Replevin,  the  Plaintiff  or  Plaintiffs,  or  his,  her,  its  or  their 
Attorney  shall  deliver  a  Memorandum  in  writing,  according 
to  the  following  form  or  to  the  like  effect : 

"  In  the  Action  of  Replevin  brought  by  {here  insert  the 
name  or  names  of  the  Plaintiff  or  Plaintiffs)  against  {here  in- 
sert the  name  or  names  of  the  Defendant  or  Defendants)  A.  B. 
{or  A.  B.  and  C.  D.  cfcc.)  Defendant  {or  Defendants)  resides  in 
{here  insert  the  County  or  City.) 

Give  him,  her,  it  or  them,  notice  of  the  Action. 

Delivered  the day  of 18 — 

(Signed,) 


To  E.  T.,  Clerk,  <S:c. 


PRELIMINARY    PROCEDURE.  35 

Sucli  Memorandum  to  be  delivered  to  the  Clerk  of  the 
Court,  and  to  be  dated  on  the  day  of  the  delivery  thereof, 
and  signed  by  the  Plaintiff  or  Plaintiffs,  or  his,  her,  its  or 
their  Attorney. 

24.  "  And  in  case  the  Defendant  or  Defendants  so  residing 
in  a  different  jurisdiction  shall  be  returned  'Notified,'  and 
shall  not  appear  in  person  or  by  Attorney  on  or  before  the 
fourth  day  of  the  term  next  succeeding  that  to  which  such 
return  shall  be  made,  the  Court  shall  be  authorized  and 
required,  on  motion  to  enter  up  judgment  for  the  Plaintiff 
or  Plaintiffs  for  the  property  replevied  and  for  damages  in 
the  discretion  of  the  Court,  upon  satisfactory  proof  of  any, 
and  costs;  which  judgment  shall  be  as  valid  and  effectual 
as  any  judgment  rendered  on  the  verdict  of  a  Jury. 

25.  "And  such  Notice  to  a  Defendant  or  Defendants, 
residing  in  a  different  jurisdiction,  shall,  upon  a  return  of 
"cannot  be  found,"  be  renewable,  in  the  same  manner  as  a 
writ  of  Summons,  against  any  Defendant  not  served  there- 
with." 

We  have  now  passed  in  review,  the  whole  initiatory  pro- 
cess, in  personal  actions.  Under  the  old  practice,  it  was  an 
exceedingly  complex  and  subtle  title,  requiring  long  study 
and  large  practical  experience,  to  master  its  principles  and 
its  practical  details.  Under  the  simplified  procedure,  as  I 
have  expounded  it,  all  those  perplexing  questions  about  the 
form  of  action,  or  the  proper  writ  to  be  issued,  in  a  given 
case,  are  entirely  excluded  from  practice.  And  as  there  are 
only  two  writs  in  personal  actions,  under  the  simplified  pro- 
cedure, the  only  question  which  can  arise,  is  as  to  the  choice 
between  these  two, — Summons  and  Replevin.  About  this, 
there  can,  of*  course,  never  be  a  mistake;  as  Kcplevin  is 
confined  to  the  specific  recovery  of  personal  pro})crty,  and 
by  the  Act  of  Assembly  1825,  Ch.  05,  for  the  recovery  of 
an  a))])rcntice.     lu  all   other  cases,  except  for   the   s})ccilic 


36         PRELIMINARY  PROCEDURE. 

recovery  of  land,  the  proper  writ  is  the  Summons,  The 
student,  when  he  enters  upon  the  study  of  Liw  procedure,  is 
supposed,  to  be  familiar  with  tlie  doctrine  of  causes  of 
action,  or,  in  other  words,  to  have  a  correct  knowledge  of 
legal  rights  and  wrongs  remediable  at  law.  Law  procedure 
merely  teaches,  the  modes  of  enforcing  rights  and  redressing 
wrongs. 


JOINDEE  OF  PARTIES  TO  AN  ACTION. 

In  a  previous  part  of  this  treatise,  I  called  attention  to 
the  subject  of  Parties  to  an  Action,  and  said  that  the  law  of 
the  subject  did  not  pertain  to  Pleading,  and  consequently, 
did  not  come  within  the  scope  of  this  treatise.  Though  this 
be  so,  yet  it  pertains  to  procedure  preliminary  to  Pleading, 
to  regulate  the  practice  in  regard  to  the  non-joinder  and 
the  mis-joinder  of  parties  both  Plaintifi"  and  Defendant. 
For  it  may  happen,  that  persons  have  not  been  joined  as 
Plaintiffs  in  an  action  who  ought  to  have  been  joined,  or 
that  persons  have  been  joined  as  Plaintiffs  who  should  not 
have  been  joined ;  and  the  same  non-joinder  or  mis-joinder 
may  happen  in  regard  to  defendants.  This  error  will  have 
been  committed,  if  at  all,  upon  the  return  of  the  Summons, 
as  it  must  originate  in  the  Memorandum  of  the  Plaintiff 
filed  at  the  bringing  of  the  Action,  and  should  be  rectified 
as  soon  as  known  to  the  Defendant,  so  as  to  produce  as 
little  embarrassment  and  delay  in  the  action  as  possible. 
The  subject  therefore  comes  properly  within  procedure 
preliminary  to  Pleading,  and  is  embraced  in  the  Act  of 
Simplification. 


JOINDER  OF  PLAINTIFFS. 

The  practice  in  regard  to  the  errors  of  non-joinder  and 
the  mis-joinder  of  Plaintiffs  is  regulated  by  the  twenty-sixth, 


PRELIMINARY     PROCEDURE.  37 

twenty-seventli,  and  twenty-eiglitli  sections  of  tlie  Act  of 
Simplification.     The  sections  are  as  follows : 

26.  "It  shall  and  maybe  lawful  for  the  Conrt,  at  any 
time  before  the  trial  of  a  cause,  to  order  that  any  person  or 
persons,  not  joined  as  Plaintiff  or  Plaintiffs  in  such  cause, 
shall  be  so  joined,  or  that  any  person  or  persons,  originally 
joined  as  Plaintiff  or  Plaintiffs  shall  be  struck  out  from 
such  cause,  if  it  shall  appear  to  the  Court  that  injustice  will 
not  be  done  by  such  amendment,  and  that  the  person  or 
persons  to  be  added  as  aforesaid,  consent,  either  in  person 
or  by  writing  under  his,  her  or  their  hands,  to  be  so  joined, 
or  that  the  person  or  persons  to  be  struck  out  as  aforesaid, 
were  originally  introduced  without  his,  her  or  their  consent, 
or  that  such  person  or  persons  consent  in  manner  aforesaid 
to  be  struck  out;  and  such  amendment  shall  be  made  npon 
such  terms  as  to  the  amendment  of  the  pleadings,  (if  any,) 
postponement  of  trial,  and  otherwise,  as  the  Court  shall  think 
proper;    and  when   any  such  amendment  shall  have  been 
made,  the  liability  of  any  person  or  persons  who  shall  have 
been  added  as  Co-plaintiff,  or  Co-plaintiffs  shall,  subject  to 
any  terms  imposed  as  aforesaid,  be  the  same  as  if  such  person 
or  persons  had  been  originally  joined  in  the  cause. 

27.  "In  case  it  shall  appear  at  the  trial  of  any  action, 
that  there  has  been  a  misjoinder  of  Plaintiffs,  or  that  some 
person  or  persons  not  joined  as  Plaintiff  or  Plaintiffs  ought 
to  have  been  so  joined,  such  misjoinder  or  non-joinder  may 
be  amended  as  a  variance  at  the  trial,  if  it  shall  ap})ear  to 
the  Court  that  injustice  will  not  be  done  by  sucli  amend- 
ment, and  that  the  person  or  persons  to  be  added  as  afore- 
said consent  either  in  person  or  by  writing,  under  his,  her 
or  their  hands,  to  be  so  joined,  or  that  the  person  or  per. 
sons,  to  be  struck  out  as  aforesaid,  were  originally  intro- 
duced without  his,  her  or  their  consent,  or  that  such  person 
or  persons  consent  in  manner  aforesaid  to  be  so  struck  out, 
and  such  amendment  shall  be  made  upon  such  terms  as  the 


38         PRELIMINARY  PROCEDURE. 

Court  shall  tliink  proper ;  and  when  any  such  amendment 
shall  have  been  made,  the  liability  of  any  such  person  or 
persons,  who  shall  have  been  added  as  Co-plaintiff  or  Co- 
plaintiffs,  shall,  subject  to  any  terms  imposed  as  aforesaid, 
be  the  same  as  if  such  person  or  persons  had  been  originally 
joined  in  such  action. 

28.  "In  all  cases  where  a  plea  in  abatement  of  non- 
joinder of  a  person  or  persons  as  Co-plaintiff  or  Co-plaintiffs 
shall  be  pleaded,  the  Plaintiff"  shall  be  at  liberty,  without 
any  order  of  the  Court,  to  amend  the  writ  and  other  pro- 
ceedings before  plea,  by  adding  the  name  or  names  of  the 
person  or  persons  named  in  such  plea,  and  proceed  in  the 
action  without  any  further  appearance,  on  payment  of  the 
costs  of,  and  occasioned  by  such  amendment  only,  and  in 
such  case,  the  Defendant  shall  be  at  liberty  to  plead  de 
novoy 

By  the  twenty-ninth  section  of  the  Act  of  Simplification, 
a  husband  is  authorised  to  join,  in  an  action  where  his  wife 
is  necessarily  joined  with  him,  claims  in  his  own  right. 
This  provision  is  designed  to  prevent  a  multiplicity  of 
actions  and  unnecessary  expenses.  As  for  example :  If  a 
husband  and  wife  are  both  injured  at  the  same  time,  and 
by  the  same  accident  on  a  Eail-road,  two  actions  would, 
under  the  old  law,  have  to  be  brought.  And  the  proceed- 
ings would  have  been  very  much  like  trying  one  case  twice ; 
as  the  accident  would  be  the  same,  and  the  witnesses,  for 
the  most  part,  the  same.  It  is  however  optional  with  the 
husband  to  bring  one  or  more  actions.  The  section  of  the 
Act  in  regard  to  the  matter  is  in  these  words : 

29.  "  In  any  action  brought  by  a  man  and  his  wife,  in 
respect  of  which  she  is  necessarily  joined  as  Co-plaintiff"  it 
shall  be  lawful  for  the  husband  to  add  thereto  claims  in  his 
own  right ;  and  separate  actions  brought  in  respect  of  such 
claims  may  be  consolidated,  if  the  Court  shall  think  fit ; 


PRELIMINARY     PROCEDURE.  39 

provided,  that  in  the  case  of  the  death  of  either  Plaintiff, 
such  suit,  so  far  only  as  relates  to  the  causes  of  action,  if 
anj,  which  do  not  survive,  shall  abate." 


JOINDER  OF  DEFENDANTS. 

The  Act  of  Simplification  has  applied  the  same  principles 
of  practice  to  the  non-joinder  and  the  mis-joinder  of  De- 
fendants which  it  has  applied  to  Plaintiffs.  The  old  law 
has  been  changed :  but  the  student  can  derive  no  practical 
benefit  from  a  rehearsal  of  it ;  as  it  is  abrogated,  and  is  not 
so  connected  with  the  new  law  as  to  shed  light  on  it,  as  is 
the  case  in  some  other  parts  of  the  work  of  Simplification. 
The  non-joinder  and  the  mis-joinder  of  Defendants  is  regu- 
lated by  the  thirtieth,  thirty -first,  and  thirty-second  sections 
of  the  Act  of  Simplification.     The  sections  are  as  follows : 

30.  "It  shall  and  may  be  lawful  for  the  Court  in  the 
case  of  the  joinder  of  too  many  Defendants  in  any  action  on 
contract,  at  any  time  before  the  trial  of  such  cause,  to  order 
the  name  or  names  of  one  or  more  of  such  Defendants  to  be 
struck  out,  if  it  shall  appear  to  such  Court  that  injustice 
will  not  be  done  by  such  amendment ;  and  the  amendment 
shall  be  made  upon  such  terms  as  the  Court  by  whom  such 
amendment  is  made  shall  think  proper ;  and  in  case  it  shall 
appear  at  the  trial  of  any  action  on  contract,  that  there  has 
been  a  misjoinder  of  Defendants,  such  misjoinder  may  be 
amended,  as  a  variance  at  the  trial,  in  like  manner  as  the 
misjoinder  of  Plaintiffs  has  been  before  directed  to  be 
amended,  and  upon  such  terms  as  the  Court  shall  think 
proper. 

31.  "In  any  action  on  contract  where  the  non-joinder  of 
any  person  or  persons  as  a  Co-defendant  or  Co-defendants 
has  been  pleaded  in  abatement,  the  Plaintiff  shall  be  at 
liberty,  without  any  order,  to  amend  the  Writ  of  Summons 


40  PRELIMINARY     PROCEDURE. 

and  the  Declaration  by  adding  tlic  name  or  names  of  the 
person  or  persons  named  in  such  plea  of  abatement  as  joint 
contractors,  and  to  serve  the  amended  writ  upon  the  person 
or  persons  so  named  in  such  plea  in  abatement,  and  to 
proceed  against  the  original  Defendant  or  Defendants,  and 
the  person  or  persons  in  such  plea  in  abatement :  provided 
that  the  date  of  such  amendment  shall,  as  between  the 
person  or  persons  so  named  in  such  plea  in  abatement  and 
the  Plaintiff,  be  considered  for  all  purposes  as  the  com- 
mencement of  the  action. 

82.  "  In  all  cases  after  such  plea  in  abatement  and  amend- 
ment, if  it  shall  appear  upon  the  trial  of  the  action  that  the 
person  or  persons,  so  named  in  such  plea  in  abatement,  was 
or  were  jointly  liable  with  the  original  Defendant  or  De- 
fendants, and  resided  in  the  County  or  City  where  the 
action  is  brought,  the  original  Defendant  or  Defendants 
shall  be  entitled  as  against  the  Plaintifts  to  the  costs  of 
such  plea  in  abatement  and  amendment;  but  if  at  such 
trial  it  shall  appear  that  the  original  Defendant  or  any  of 
the  original  Defendants  is  or  are  liable,  but  that  one  or 
more  of  the  persons  named  in  such  plea  in  abatement  is 
or  are  not  liable  as  a  contracting  party  or  parties  or  does 
or  do  not  reside  in  the  County  or  City  where  the  action 
is  brought,  the  Plaintiff  shall  nevertheless  be  entitled  to 
judgment  against  the  other  Defendant  or  Defendants  who 
shall  appear  to  be  liable ;  and  every  Defendant  who  is  not 
so  liable  shall  have  judgment,  and  shall  be  entitled  to  his 
costs  as  against  the  Plaintiff,  who  shall  be  allowed  the  same, 
together  with  the  costs  of  the  plea  in  abatement  and  amend- 
ment, as  costs  in  the  case  against  the  original  Defendant  or 
Defendants  who  shall  have  so  pleaded  in  abatement  the 
non -joinder  of  such  person :  provided,  that  any  such  De- 
fendant who  shall  have  so  pleaded  in  abatement  shall  be  at 
liberty  on  the  trial  to  adduce  evidence  of  the  liability  of  the 
Defendants  named  by  him  in  such  plea  in  abatement,  and 


PRELIMINARY  PROCEDURE.        41 

of  their  residence  in  the  County  or  City  where  the  action  is 
brought." 

In  the  foregoing  sections,  the  Plea  in  Abatement  is  fre- 
quently mentioned ;  the  law  of  which,  the  Student  is  sup- 
posed not,  as  yet,  to  understand.  It  will  be  treated  of 
hereafter  in  its  proper  place.  Until  then,  the  Student  will 
suspend  his  attention  in  regard  to  it. 


JOINDEE  OF  CAUSES  OF  ACTION. 

This  is  an  important  part  of  law  procedure.  When  a 
person  has  several  different  causes  of  action,  and  is  about 
to  enforce  them,  it  is  important  to  know,  whether  he  can 
embrace  them  all  in  one  action,  or  must  bring  more  than 
one.  Under  the  old  system  of  procedure  this  was  an 
exceedingly  difficult  matter  to  know.  Forms  of  action,  of 
which  I  have  heretofore  spoken,  created  artificial  distinc- 
tions which  prevented  causes  of  action  from  being  joined, 
which  in  themselves  might  be  conveniently  tried  together. 
We  have  seen,  that  if  a  log  of  wood  be  thrown  upon  a  man 
and  breaks  his  arm,  he  must  under  the  old  law  bring  an 
action  of  trespass ;  but  if  he  falls  over  the  log  after  it  has 
fallen,  and  breaks  his  arm,  he  must  bring  an  action  on 
the  case ;  the  difference  in  the  forms  of  action  consisting  in 
the  insertion  or  omission  of  the  words  vi  et  armis.  Now  if 
it  so  happened  that  a  person  had  received  injuries  both 
ways,  from  the  same  person,  he  could  not  have  joined  the 
two  causes  of  action  in  one  suit ;  because  trespass  and  case 
could  not  be  joined.  (1st  Chit.  Plead.  182.  Saund.  Ecp. 
117,  note  h.)  Forms  of  action  created  difficulties  in  two 
ways ;  first,  in  the  application  of  the  wrong  form  of  action 
to  a  particular  case ;  and  secondly,  in  the  mis-joinder  of 
forms  of  action.  If  a  wrong  form  was  ap})lied,  it  was  fatal 
to  the  action ;  and  if  causes  of  action  were  joined  which 
the  forms  of  action  forbid,  it  was,  fatal  too. 


42  PRELIMINARY    TROCEDURE. 

The  supposal  of  forms  of  action  was,  that  they  were 
founded  upon  substantial  distinctions  which  prevented  in- 
congruous and  dissimilar  causes  of  action  from  being  incon- 
veniently mixed  together  in  the  same  suit.  But  this  is  not 
so.  For  causes  the  most  dissimilar  in  their  intrinsic  nature 
might  be  joined  under  the  doctrine  of  forms  of  action, 
while  those  almost  identically  alike  could  not  be  joined. 
"The  Plaintiff  might  join  in  one  action  a  claim  on  a  pro- 
missory note,  on  a  breach  of  promise  of  marriage,  and  a 
complaint  of  negligence  against  an  attorney ;  in  a  second, 
he  might  join  a  claim  for  criminal  conversation  with  tres- 
pass to  his  person,  his  lands  or  his  goods ;  in  a  third,  he 
might  sue  for  the  seduction  of  his  daughter,  infringing  his 
patent,  and  for  negligently  driving  over,  and  for  slandering 
him ;  because  in  all  these  cases  the  form  of  action  was  the 
same."  The  joinder  therefore  of  the  most  incongruous 
causes  of  action  might  occur  under  the  old  procedure  with 
its  forms  of  actions  supposed  to  guard  against  it.  The  Act 
of  Simplification,  has,  as  we  have  seen,  abolished  forms  of 
action,  and  permits  a  Plaintift'  to  join  any  causes  of  action, 
except  Eeplevin  and  Ejectment,  in  the  same  suit.  The 
whole  matter  of  such  joinder  is  left  to  the  sound  sense 
and  the  self-interest  of  the  Plaintiff.  As  Plaintiffs  did  not 
embarrass  themselves  under  the  old  system,  by  joining 
together  in  one  action,  the  incongruous  causes  which  could 
be  joined  under  it,  it  is  concluded  that  they  will  not  join 
such  under  the  new,  which  permits  them  to  join  or  not  to 
join  the  causes  of  action  in  one  suit.  And  as  before  the 
Consolidating  Act,  1825,  Ch.  167,  which  compels  Plaintiffs 
to  join  certain  causes  of  action,  which  convenience  and 
economy  require  to  be  joined.  Plaintiffs  never  did  join 
them,  though  there  was  no  technical  difficulty  in  the  way, 
it  Avill  be  contrary  to  experience  to  suppose,  that  Plaintiffs 
will  now  join  incongruous  causes  of  action  to  the  embar- 
rassment of  trials.  Whereas,  by  permitting  Plaintiffs  to 
exercise  their  discretion  in  the  matter,  causes  of  action, 
which  it  is  proper  should  be  joined,  but  which  technical 


PRELIMINARY    PROCEDURE.  43 

difficulties,  created  by  tlie  forms  of  action,  prevented  here- 
tofore from  being  joined,  may  be  joined  to  tlie  advancement 
of  a  just  administration  of  the  law,  and  to  the  avoidance  of 
the  delay  and  expense  which  sometimes  occurred  under  the 
old  procedure  from  a  mis-joinder  of  causes  of  action  con- 
gruous in  themselves,  but  technically  inconsistent. 

Because  of  such  considerations,  the  Act  of  Simplication 
leaves  it  optional  with  the  Plaintiff  to  join  any  causes  of 
action  in  the  same  suit,  except  those  for  which  Eeplevin 
and  Ejectment  are  brought.  These  actions,  as  I  have  here- 
tofore explained,  are  provided  for  the  specific  recovery  of 
property ;  the  first  for  personal  property ;  the  second  for 
real  property.  They  act  on  the  specific  thing  claimed ;  and 
therefore  require  specific  judgments.  These  exceptions, 
too,  make  a  natural  division  of  causes  of  action  into  those 
for  the  recovery  of  satisfaction  in  money,  whether  due  on 
contract  or  for  wrong ;  and  those  for  the  specific  recovery 
of  each  of  the  two  kinds  of  property,  which  are  recognized 
as  distinct  under  all  systems  of  laws,  personal  and  real.  A 
simple  practice  is  thus  founded,  on  obvious  and  natural 
distinctions,  between  the  classes  of  things  claimed  in  actions 
at  law. 

But  if  it  should  happen,  that  a  Plaintiff  does  join  causes 
of  action,  which  it  is  embarrassing  to  try  in  one  suit,  the 
Court  has  power  under  the  simplified  procedure  to  order 
them  to  be  tried  separately.  The  practice  of  the  whole 
subject  of  joinder  of  causes  of  action  is  regulated  by  the 
thirty-third  section  of  the  Act  of  Simplification,  in  these 
words ; 

33.  "  Causes  of  Action  of  whatever  kind,  provided  they 
be  by  and  against  the  same  parties,  and  in  the  same  rights, 
may  be  joined  in  the  same  suit ;  but  this  shall  not  extend 
to  lieplevin  or  Ejectment ;  but  the  Court  shall  have  power 
to  prevent  the  trial  of  different  causes  of  action  together, 
if,  in  the  opinion  of  the  Court,  such  trial  would  be  inex- 
pedient; and  in  such  case,  the  Court  may,  when  the  caso 


44  PRELIMINARY    PROCEDURE. 

J  comes  on  for  trial,  or  before,  direct  separate  cases  to  be 
I  docketed,  and  separate  trials  to  be  had  in  tlieir  order  of 
\  priority,  either  immediately  or  at  such  time  or  times  as  the 

jl  Court  shall  deem  most  equitable  and  just." 

The  Act  of  1825,  ch.  167,  affects  the  subject  matter  of  the 
joinder  of  causes  of  action,  as  I  have  already  intimated. 
By  the  first  section,  "  it  shall  not  bo  lawful  to  institute  more 
than  one  suit  on  a  joint  and  several  bond,  penal  or  single 
bill,  where  the  persons  executing  the  same  are  alive,  and 
reside  in  the  same  county ;  and  if  more  than  one  suit  be 
instituted  on  any  such  bond,  penal  or  single  bill,  judgment 
of  non  pros  shall  be  entered  against  the  plaintiff,"  &c. 

And  by  the  fifth  section,  "  in  all  cases  where  two  or  more 
actions  of  debt  or  obligations  conditioned  for  the  payment 
of  money,  or  two  or  more  actions  on  the  case  arising  ex- 
contractu  by  and  between  the  same  Plaintiff  or  Plaintiffs, 
and  the  same  Defendant  or  Defendants  shall  hereafter  be 
brought  *at  one  and  the  same  term,  the  Court  in  which  said 
actions  are  pending,  shall,  upon  motion  of  the  Defendant  or 
Defendants,  order  said  actions  to  be  consolidated ;  and  when 
the  said  actions  are  consolidated,  the  Court  shall  order  and 
direct  the  Clerk  to  tax  the  costs  of  but  one  action." 

The  Act  of  Simplification  does  not  affect  the  foregoing 
sections  of  the  Act  of  1825,  ch.  167.  A  Plaintiff  must  still 
bring  but  one  suit  in  the  cases  specified  in  the  first  section. 
And  a  Defendant  may  still  have  separate  actions  consoli- 
dated in  the  cases  mentioned  in  the  fifth  section.  The  prac- 
tice of  consolidating  actions,  to  save  costs,  is  an  ancient  one 
long  used  in  England.  Our  Act  of  Assembly  does  but 
apply  an  old  principle  in  the  cases  enumerated.  It  is  a 
wholesome  practice  and  should  be  continued. 


EULES   OF    PLEADING.  45 


CHAPTER  II. 


PLEADING. 


The  Defendant  having  appeared  to  the  Writ  of  Sum- 
mons, the  next  step  in  the  regular  progress  of  an  action,  is 
the  delivery,  by  the  respective  parties,  in  alternate  order,  to 
the  Clerk  of  the  Court,  to  be  filed  in  the  case,  the  state- 
ments in  ^yriting  of  their  respective  grounds  of  complaint 
and  defence,  Avhich  are  called  the  Pleadings. 

It  is  necessary,  in  order  that  the  Student  may  understand 
the  simplified  Pleading,  that  he  should  have  exhibited 
before  him  the  Common  Law  system  of  Pleading,  as  it 
stood  before  it  was  simplified.  And  as  nothing  can  be  so 
well  understood,  when  considered  merely  in  itself,  as  when 
in  contrast  with  its  opposite,  I  will  consider  the  Common 
Law  Pleading  in  contrast  with  the  Civil  Law  Pleading; 
as  by  the  contrast,  the  peculiar  character  and  merit  of  the 
Common  Law  Pleading  can  be  better  exhibited  and  ex- 
pounded. For  the  Common  Law  of  England  and  the  Civil 
Law  of  Ancient  Imperial  Rome,  as  far  as  their  administra- 
tive principles  and  forms  of  procedure  are  concerned,  are 
the  opposites  of  each  other. 

The  purpose  of  judicial  proceedings  is  to  ascertain  and 
to  decide  upon  disputes  between  parties.  In  order  to  do 
this,  it  is  indispensable  that  the  point  or  points  in  contro- 
versy be  evolved  and  distinctly  presented  for  decision. 
The  Common  Law  and  the  Civil  Law  have  different  modes 
for  accomplishing  this  purpose.  The  rules  of  Common  Law 
Pleading  are  designed  to  develop  and  present  the  precise 
point  in  dispute  upon  the  face  of  the  written  pleadings  or 
record,  without  requiring  any  action  on  the  part  of  the 
Court  for  the  purpose.  The  parties  are  required  to  plead 
alternately,   until   their   allegations   terminate  in  a  single 


46  RULES   OF   PLEADING. 

material  issue,  as  it  is  called,  either  of  law  or  fact  asserted 
on  one  side  and  denied  on  the  other,  the  decision  of  which 
will  dispose  of  the  cause  and  settle  the  dispute. 

By  the  Civil  Law,  the  parties  are  not  required  to  plead,  in 
such  a  way,  as  to  evolve  upon  the  record  by  the  allegations 
themselves,  the  point  or  points  in  dispute :  but  are  per- 
mitted to  set  forth  all  the  facts,  which  constitute  the  cause 
of  action  or  the  defence,  at  large ;  the  questions  of  law  not 
being  separated  from  the  questions  of  fact,  as  they  are  in 
the  Common  Law  Pleadings:  but  the  whole  case  is  pre- 
sented in  gross  to  the  Court  for  its  determination.  Under 
this  system,  the  Court  has  the  labor  of  reviewing  the  com- 
plex allegations  of  both  parties,  and  methodising  them  and 
evolving  the  real  points  on  which  the  controversy  turns. 

When  the  Court  of  Chancery  in  England  begun  to  take 
judicial  cognizance  of  disputes  between  parties,  it  adopted 
the  Civil  Law  mode  of  procedure.  This  Court  assumed  to 
eschew  the  strict  and  technical  Eules  of  the  Common  Law, 
and  to  proceed  upon  the  broad  equities  of  the  cause ;  and 
therefore  naturally  required  the  statement  of  the  facts,  by 
both  parties,  at  large.  As  the  mode  of  trial  by  jury  did 
not  pertain  to  this  Court,  the  inconvenience  of  mingling 
questions  of  law  and  fact  was  not  felt ;  as  they  were  both 
decided  by  the  Court,  and  therefore  needed  not  to  be 
separated  on  the  record,  as  in  Courts  of  Law,  where  they 
are  decided  by  different  tribunals.  And  besides,  the  Chan- 
cellor could  take  time  for  the  examination  of  the  questions 
both  of  law  and  fact  involved  in  the  allegations.  There  is 
therefore  nothing  in  the  organization  of  the  Court  of  Chan- 
cery which  forbids  the  use  of  the  Civil  Law  mode  of 
pleading. 

But  this  mode  of  Pleading  is  not  applicable  to  Common 
Law  Courts.  In  these  Courts,  questions  of  law  are  decided 
by  the  Court,  while  questions  of  fact  are  decided  by  the 
jury.  It  is  therefore,  at  least,  convenient  that  these  ques- 
tions, which  are  decided  by  different  tribunals,  should  be 
separated  on  the  record  before  the  case  is  presented  for  trial. 


RULES   OF   PLEADING.  47 

The  real  points,  about  wliicli  tlie  parties  differ,  cannot  be  so 
easily  evolved  from  the  complicated  mass  of  facts,  in  the 
hurry  of  a  trial,  as  they  can  be,  by  Pleadings  carefully 
framed  before-hand,  by  learned  lawyers,  in  accordance  with 
Eules  and  Forms  which  require  all  issues  to  be  certain  and 
single,  and  to  be  framed  on  the  record  itself  by  an  affirma- 
tive and  a  negative  statement  of  the  parties.  And  it  is 
sufficiently  manifest,  that  it  will  facilitate  the  due  adminis- 
tration of  justice,  to  have  the  record  of  every  case  dis- 
encumbered of  all  extraneous  matter,  and  of  every  thing 
irrelevant  and  immaterial,  and  nothing  but  the  naked  point 
in  dispute,  whether  of  law  or  of  fact  presented  distinctly  to 
the  Court  and  the  jury ;  as  is  done  by  special  or  Common 
Law  Pleading.  And  when  the  decision  is  made,  no  matter 
how  loosely  the  opinion  of  the  Court  may  be  expressed,  or 
how  many  irrelevant  dicta  it  may  enounce,  the  pleadings  in 
the  case  give  definiteness  to  the  point  or  points  decided, 
and  excluding  all  others,  preserve  them  forever  as  a  pre- 
cedent for  the  guidance  of  future  judges. 

As,  in  actions  at  law,  questions  of  fact  as  well  as  questions 
of  law  are  necessarily  involved  ;'  and  as  questions  of  fact  are, 
for  the  most  part,  determined  by  the  oral  testimony  of  wit- 
nesses deposing  in  open  Court  during  the  trial :  it  becomes 
a  matter  of  paramount  importance,  that  the  pleadings  should 
be  so  framed,  as  to  render  the  relevancy  and  irrelevancy  of 
testimony  obvious,  and  consequently  its  admissibility  or 
inadmissibility  easily  determined ;  as  such  determination 
must  be  made  in  the  hurry  and  bustle  of  the  trial.  In  this 
prime  requisite,  the  Common  Law  Pleading  is  greatly  su- 
perior to  the  Civil  Law  Pleading;  as  it  separates  questions 
of  fact  from  those  of  law,  and  presents  the  precise  question 
to  be  determined,  thereby  indicating  the  evidence  required 
to  prove  it,  as  also  the  rebutting  evidence.  Whereas,  when 
detailed  statements  by  the  Plaintiff"  and  Defendant  arc  jicr- 
mitted,  as  under  the  Civil  Law  Pleading,  the  exact  point  in 
dispute  will  often  be  left  so  obscure,  that  the  evidence  must 
be  latitudinous  and  vague,  and  many  topics  intnxluccd  in 


48  RULES   OF   PLEADING. 

the  testimony  whicli  have  nothing  to  do  with  the  real 
questions  in  dispute. 

There  is  no  part  of  the  practice  of  the  law  more  important 
than  that  which  relates  to  the  admission  and  rejection  of 
evidence.  For  there  can  be  no  security  for  rights,  however 
clearly  they  may  be  defined  in  the  system  of  jurisprudence, 
if  in  judicial  proceedings  improper  evidence  is  admitted 
and  proper  evidence  rejected.  And  it  can  only  be  under  a 
system  of  pleading  where  single  issues  are  formed,  that 
there  can  exist  a  distinct  and  definite  law  of  evidence  by 
which  the  admissibility  and  inadmissibility  of  evidence  is 
to  be  determined.  This  is  exemplified  by  the  difference  be- 
tween the  law  of  evidence  under  the  Common  and  the  Civil 
Law.  Under  the  Civil  Law  it  is  vague  and  uncertain ; 
while  under  the  Common  Law  it  is  precise  and  plain. 
Lord  Campbell,  the  present  Chief  Justice  of  England, 
though  a  great  admirer  of  the  Civil  Law,  when  speaking 
of  the  principles  of  the  Common  Law  which  regulate  the 
admission  and  rejection  of  evidence,  is  constrained  to  say : 
"These  place  the  English  law,  for  once,  above  the  Civil  law 
itself,  which  notwithstanding  its  general  exquisite  good 
sense,  is  here  arbitrary  and  capricious."  Lord  Bacon  too, 
even  in  his  day,  noted  the  superiority  of  the  Common  Law 
in  regard  to  evidence :  "  For  trials  (says  Bacon)  no  law  ever 
took  a  stricter  course  that  evidence  should  not  be  perplexed, 
nor  juries  inveigled,  than  the  Common  Law  of  England ; 
or,  on  the  other  side,  never  law  took  a  stricter  or  more 
precise  course  with  juries,  that  they  should  give  a  direct 
verdict."  It  is  thus  seen  that  a  definite  law  of  evidence  is 
an  off-shoot  from  the  system  of  Special  or  Common  Law 
Pleading. 

The  Student  has,  now,  it  is  hoped,  discerned  the  peculiar 
and  distinguishing  character  of  the  Common  Law  Pleading 
which  gives  certainty  to  trials  at  law :  by  making  the  ques- 
tions to  be  decided  precise;  the  admission  and  rejection  of 
evidence  definite,  and  easily  determined ;  and  retaining  on 
the  record,  after  the  trial,  precision  in  every  step  from  the 


RULES    OF    PLEADING.  49 

Summons  to  tlie  Judgment,     So  that  it  can  be  known  what 
was  in  dispute,  what  was  proved,  and  what  was  adjudged. 

I  ^ril\  look  still  further  into  the  Common  Law  Pleading, 
with  a  Adew  to  exhibit  the  cardinal  defect  which  the  Sim- 
plification was  intended  to  remedy,  so  that  the  Student,  by 
knowing  what  was  the  great  evil  it  was  intended  to  avoid, 
as  well  as,  what  is  the  special  object  it  was  intended  to 
accomplish,  may  the  more  readily  understand  the  simplified 
pleading. 

The  system  of  Common  Law  Pleading  is  a  natural  sys- 
tem. Considered  with  reference  to  its  leading  principle,  it 
will  be  found  to  be  the  natural  logical  process  which  the 
mind  is  necessitated,  by  the  very  laws  of  thought,  to  pursue 
in  the  analysis  and  evolution  of  any  question  whatever. 
The  plaintiff  states  his  cause  of  action.  The  Defendant  is 
then  placed  in  the  ordinary  logical  dilemma  of  either  deny- 
ing or  confessing  and  avoiding  the  Plaintiff's  case.  And 
the  Plaintiff"  is  then  in  the  same  dilemma.  And  so  alter- 
nately, through  every  stage  of  Pleading.  Kow,  this  is  the 
ordinary  logical  operation  which  the  mind  is  necessitated 
to  pursue  in  every  subject  of  investigation. 

But  in  order  to  regulate  this  logical  process  of  alternate 
statements  by  the  Plaintiff  and  Defendant,  so  as  to  secure 
the  practical  results  of  proper  litigation,  it  has  been  found 
necessary  to  have  fixed  Eules  and  Forms.  These  Eules 
and  Forms  are  all  designed,  with  reference  to  the  great  end 
of  bringing  the  parties  to  specific  issues  of  an  affirmative  on 
one  side  and  a  negative  on  the  other,  which  can  be  easily 
comprehended  by  the  Court  or  the  jury  who  are  to  decide 
them.  These  Eules  and  Forms  make  up  the  whole  sj^stem 
of  Pleading ;  and'  it  is  these  Eules  and  Forms  simplified 
together  with  some  substitutions  and  additions,  that  con- 
stitute the  simplified  Pleadings ;  as  will  be  seen  when  we 
come  to  consider  them. 

The  Eules  of  Pleading  are  the  regulative  principles  which 
the  experience  of  Courts  has  found  the  most  efficient  and 
convenient,    for   conducting   the   logical   process,    and   for 

4 


of)  RULES    OF    PLEADING. 

IVaming  tlie  modes  of  stating  a  cause  and  the  defences  in 
the  business  of  disputes  at  law.  These  Eules,  as  we  shall 
jiresently  see,  divide  themselves  into  two  classes:  those 
which  relate  to  Substance,  and  those  which  relate  to  Form, 

The  Forms  of  Pleading  are  the  authoritative  modes  in 
which  the  allegations  of  alternate  pleadings  are  stated.  It 
is  these  Forms  that  give  to  the  system  of  Pleading  its  prac- 
tical efficiency.  Without  fixed  Forms,  the  application  of 
the  Eules  of  Pleading  would  be  exceedingly  precarious. 
Indeed,  well-contrived  Forms  are  the  consummate  excel- 
lence in  every  department  of  legal  practice.  As  Convey- 
ancing is  nothing  without  Forms,  so  is  Pleading  nothing 
without  them.  Forms  are  the  only  contrivance  to  secure 
precision,  certainty  and  fiicility. 

The  Rules  and  Forms  of  Pleading  are  eminently  aux- 
iliary to  the  mind  of  the  lawyer  in  the  analysis  which  is 
required  in  the  investigation  and  preparation  of  a  cause  for 
trial,  as  well  as,  for  stating  the  results  of  that  analysis  in 
the  alternate  allegations  on  the  record.  A  case  never  ap- 
pears so  definite  to  the  practitioner  as  when  he  is  puting  it 
into  the  Forms  of  Pleading.  Then  it  reveals  itself  And 
the  help  of  Rules  and  Forms  enables  the  Court,  in  the 
hurry  and  bustle  of  a  trial  to  see  through  the  case,  to  sift 
and  assort  the  materials  of  which  it  is  constituted  better 
than  any  other  possible  device. 

But,  in  constructing  the  system  of  Pleading  there  were 
times,  when  the  love  of  mere  art  took  the  place  of  practical 
considerations.  Pleading  came  to  be  pursued  for  its  own 
sake ;  and  the  nice  devices  of  the  system,  considered  merely 
as  an  abstract  art,  became  all  in  all  to  the  enamored  pleader, 
without  any  thought  of  its  being  an  instrument  of  adminis- 
tering justice.  In  this  way  elaborate  refinements  were 
engrafted  on  the  system,  that  encumbered  it  and  embar- 
rassed its  practical  efficiency.  Rules  were  established  for 
framing  these  mere  refinements,  as  well  as  Rules  for  fram- 
ing the  substantial  parts  of  the  Pleadings.  In  this  way 
two  sets  of  Rules  arose  ;  Rules  which  relate  to  Form,  and 


RULES   OF    PLEADING.  51 

Eules  wMch.  relate  to  Substance.  Tlie  Rules  whicli  relate 
to  Form  were  more  numerous  than  those  which  relate  to 
Substance.  And  it  was  the  just  reproach  of  the  system, 
that  it  had  a  strong  tendency  to  decide  causes  upon  points 
of  mere  Form.  This  was  a  great  evil.  If  it  be  possible,  a 
suitor  should  never  be  turned  out  of  Court  for  mere  defect 
in  Form,  when  there  is  a  substantial  cause  of  action  set 
forth  in  his  Pleading.  It  was  the  great  purpose  of  the 
Simplification  to  correct  this  evil  in  the  old  Pleadings  of 
deciding  cases  upon  mere  matters  of  form,  or  of  delaying 
their  ultimate  decision,  by  raising  questions  of  mere  form. 
A  great  many  Eules,  which  relate  to  Form,  have  been 
eliminated  from  the  system  by  the  Simplification,  thereby 
diminishing  the  difficulty  of  acquiring  a  knowledge  of  it, 
as  well  as  rendering  the  system  more  effective  as  a  mean  of 
judicial  investigation. 

Form  holds  so  important  a  place  in  the  old  Common 
Law  Pleading,  that  it  is  necessary  we  should  have  a  precise 
idea  of  its  meaning,  in  order  to  understand  fully  the  difler- 
ence  between  the  Rules  which  relate  to  Substance  and  those 
which  relate  to  Form. 

The  broadest  distinction  of  Form  is  that  of  its  contrast 
with  Substance.  And  such  it  is  in  its  abstract  sense.  But 
we  are  not  dealing  with  abstractions.  We  are  within  the 
sphere  of  practical  realities.  And  in  this  sphere,  there  is, 
as  a  general  fact,  no  such  thing  as  Form  without  Substance, 
or  Substance  without  Form.  But  the  Common  Law  Plead- 
ing does  contain  a  Form  which  has  no  substance,  i.  e.  a  Form 
which  is  wholly  independent  of  the  merits  of  a  cause  of  action  or 
of  a  defence.  In  the  language  of  Pleading,  substance  means 
merits;  and  therefore  there  can  be,  in  Pleading,  a  Form 
without  Substance,  i.  e.,  without  merits.  The  Form  which 
does  not  relate  to  merits  is  called  Technical  Form ;  and  all 
the  statements  in  Pleading  of  this  character,  are  said  to  be 
purely  formal,  i.  e.,  independent  of  the  merits  of  the  cause. 

By  referring  to  the  Statutes,  which  have  from  the  earliest 
times  been  passed  in  England  to  remedy  the  evil  of  ad- 


52  RULES    OF    PLEADING. 

lierence  to  mere  technical  Form,  it  will  be  found,  tliat  the 
distinction  is,  as  I  have  stated  it,  between  Form  and  Merits- 
These  Statutes  make  the  distinction  between  defects  in  the 
"  very  right  of  the  cause  and  the  matter  in  law  appearing 
on  the  Pleadings,"  and  "  formal  defects,  imperfections,  omis- 
sions, defaults  in  Form,  and  lack  of  Form."  Tlic  Form 
which  does  not  embody  the  merits  of  the  cause  might,  under 
the  old  system  of  Pleading,  be  disregarded;  and  except  upon 
its  being  objected  to  by  a  special  demurrer,  the  Pleading 
would  be  good,  and  such  foi'mal  defect  be  of  no  account. 

But  there  is  what  may  be  called  Form  of  Substance,  which 
necessarily  results  from  the  differences  between  different 
causes  of  action,  and  the  differences  between  different  de- 
fences. Different  cavises  of  action,  and  different  defences 
must,  of  course,  be  stated  in  different  words.  And  as  different 
facts  constitute  different  causes  of  action  or  defences,  so  do  the 
different  words,  in  which  they  are  expressed,  constitute  dif- 
ferent forms  of  statement.  And  as  one  certain  combination 
and  order  of  particular  words  must  express  the  cause  of  action 
or  defence  more  accurately  than  any  other,  this  combination 
and  order  of  words  are  the  best  form  in  which  the  cause 
of  action  or  defence  can  be  expressed.  And  such  a  form 
should  be  a  precedent  for  all  similar  cases.  For  certainly, 
it  is  more  convenient  to  use  such  forms,  than  to  let  each 
pleader  state  his  case  in  his  own  less  perfect  way.  Forms 
of  Suhstaiice  are  therefore  retained  in  the  Simplified  Plead- 
ing to  answer  the  important  ends  which  such  forms  sub- 
serve. For  though  useless  Forms  have  been  abolished,  it 
were  a  reproach  to  any  enlightened  law-reform,  to  suppose 
that  it  retained  or  prescribed  no  Forms  at  all. 

I  have  thus  shown,  that  the  system  of  Common  Law 
Pleading,  which  has  been  simplified,  is  a  natural  system 
composed  of  rules  and  forms  wliich  have  been  found  by 
experience,  best  adapted  for  regulating  the  respective  state- 
ments of  the  litigating  parties,  and  ascertaining  the  real 
points  for  decision :  but  that  many  of  the  rules  had  nothing 
to  do  with  the  merits  of  the  cause,  but  created  and  upheld 


RULES   OF    PLEADING.  53 

artificial  distinctions  and  forms  wliicli  embarrassed  Pleading 
as  a  practical  mean  of  litigation;  and  that  the  great  end, 
intended  to  be  accomplished  by  the  Simplification,  was  to 
disencumber  the  system  of  these  rules  and  artificial  forms. 

With  these  retrospective  and  prospective  considerations, 
it  is  hoped  that  the  Student  is  prepared  to  enter  upon  the 
study  of  the  simplified  Pleading,  with  more  intelligence 
than  if  he  had  been  brought  abruptly  upon  a  system,  that 
has  relations  to  another  system  which  is  necessarily  con- 
stantly referred  to,  without  knowing  what  those  relations 
are  or  what  the  peculiarities  of  that  system  were. 


THE  SIMPLIFIED  PLEADING. 

I  will  now  enter  upon  the  consideration  of  the  second 
chapter  of  the  Act  of  Simplification,  which  begins  at  the 
thirty-fourth  section  of  the  Act. 

The  second  chapter  of  the  Act  of  Simplification  embraces  : 
the  Fundamental  Eules  regulative  of  the  alternate  statements 
by  Plaintiff  and  Defendant ;  and  the  Kules  for  framing  the 
machinery,  which  constitutes  the  system  of  Pleading  that 
peculiar  contrivance,  by  which,  a  special  issue,  either  of 
law  or  of  fact,  is  always  formed  and  presented,  for  deter- 
mination, to  one  of  the  tribunals  of  which  a  Common  Law 
judicial  institution  is  composed — the  Court  or  Jury.  The 
reader  has  already  anticipated,  that  this  peculiar  feature  of 
Common  Law  Pleading,  from  the  importance  which  I  have 
ascribed  to  it,  would  be  embraced  in  the  Simplified  System. 
Accordingly,  it  is  laid  down,  as  the  Fundamental  Rule  of 
tlie  Simplified  System,  in  the  thirty-fourth  section  of  the 
Act,  in  these  words : 

"  FUNDAMENTAL    RULE." 

34.  "The  Pleadings  sliall  be  so  conducted,  as  to  evolve 
upon  tlie  record  by  the  efl'ect  of  the  allegations  themselves, 


54  RULES   OF    PLEADING. 

the  questions  of  law  and  of  fact  disputed  between  the  par- 
ties, and  present  them  as  the  subject-matter  agreed  upon  for 
decision." 

The  Court  has,  therefore,  at  the  very  head  of  the  Chapter 
on  Pleading,  continually  before  its  eyes,  the  Fundamental 
Eule  of  the  whole  system  to  guide  its  judgment  in  mode- 
rating and  controlling  the  contending  statements  of  claim 
and  of  defence,  through  the  whole  series  of  allegations. 
And  the  Bar,  too,  in  framing  the  alternate  Pleadings,  are 
ever  kept  in  mind  that  they  must  conform  to  tlie  require- 
ments of  this  paramount  rule  of  the  whole  series  of  Plead- 
ings, in  their  alternate  order. 

The  Act  of  Simplification  next  propounds  the  General 
Eule,  by  which  the  foregoing  Fundamental  Rule  is  made 
effective  in  practice.  This  Rule  is  embraced  in  the  thirty- 
fifth  section,  which  is  as  follows : 

"general  rule." 
35.  "  The  Plaintiff  shall  first  state  his  cause  of  action  in 
a  Declaration.  After  the  Declaration,  the  parties  shall,  at 
each  stage,  demur,  or  plead  by  way  of  traverse,  or  by  way 
of  confession  and  avoidance.  And  in  case  a  party  does 
neither,  but  confesses  the  right  of  the  adverse  party  or  says 
nothing,  the  Court  shall  give  judgment  for  the  adverse 
party." 

This  General  Rule  connects  the  foregoing  Fundamental 
Rule,  with  all  the  subsequent  Rules  embraced  in  the  Act  of 
Simplification,  and  through  the  machinery  of  a  Declaration, 
a  Demurrer,  a  Traverse  and  a  Confession  and  Avoidance, 
makes  all  these  Rules  auxiliary  to  the  great  purpose  of 
forming  an  issue  in  law  or  fact  for  decision.  This  Rule 
requires  the  Plaintiff  to  state  his  cause  of  action  in  a  Decla- 
ration, and  requires  the  Defendant  to  object  to  the  Declara- 
tion, by  one  or  other  of  three  m'odes  of  defence  allowed  by 
the  Rule.     And  Avhich  ever  mode  of  defence,  the  Defendant 


RULES    OF    PLEADING.  00 

uses,  will  lead  to  tlie  formation  of  a  distinct  issue,  accord- 
ing to  the  requirements  of  the  Fundamental  Eule.  The 
Demurrer  will  lead  to  an  issue  in  law ;  the  Traverse  will 
lead  to  an  issue  in  fact ;  and  so  will  the  Confession  and 
Avoidance. 

Thus,  it  is  seen,  that  whatever  course  is  taken  in  Plead- 
ing, the  parties  will  be  under  the  guidance  of  the  Funda- 
mental Eule  requiring  the  formation  of  a  specific  issue. 
This,  thej  are  compelled  to  form,  or  else  by  the  General 
Eule,  or  thirty-fifth  section,  judgment  shall  be  given  against 
the  party  declining  or  neglecting  to  do  so. 

Having  thus  shown  how  the  principle  of  forming  an 
issue  controls  the  use  of  the  machinery  of  Pleading,  I  will 
now  proceed  to  consider  the  Eules  descriptive  of  the  ma- 
chinery of  Pleading.  This  machinery  consists  of  the  Decla- 
ration, the  Demurrer,  the  Traverse,  and  the  Confession  and 
Avoidance. 

It  must  be  noted,  that  the  Eules,  which  we  are  about  to 
consider,  are  those  descriptive  of  the  machinery  of  Pleading  ; 
and  not  the  Eules  for  framing  the  machinery.  These  Eules 
will  be  considered  afterwards,  as  they  stand,  afterwards,  in 
the  Act  of  Simplification. 

In  the  order  of  law  practice,  the  Eules  descriptive  of  the 

Declaration  would  come  first  under  consideration :  but  the 

Act  of  Simplification,  for  the  advantages  of  a  more  lucid 

order,  has  not  placed  them  first ;  and  I  shall  consider  them 

^  in  the  order  in  which  they  stand  in  the  Act. 

Following  the  order  of  the  Act  of  Simplification,  I  will 
first  consider  the  Eules  descriptive  of  the  Demurrer. 


OF  DEMUEEEE. 

It  is  proper,  as  a  little  reflection  will  show,  to  consider 
the  Demurrer  before  any  other  part  of  the  machinery  of  the 
Simplified  Pleading ;  because  it  was  the  Demurrer,  by 
which,  all   tlie  objections,  for  defects  of  mere  form,  were 


56  RULES   OF   TLEADING. 

made  under  the  old  system  of  Pleading.  Therefore,  in 
defining  the  scope  of  the  Demurrer  under  the  new  system, 
we  are,  at  once,  led  to  see  the  characteristic  difference 
between  the  old  system  and  tlie  new;  which  is  that  no 
objection,  for  mere  formal  defects,  can  be  made  under  the 
new.  The  Demurrer,  therefore,  under  the  new  system  is 
stripped  of  the  function  of  making  formal  objections  to  a 
Pleading.  Under  the  new  system  its  function  is  confined 
to  making  objections  to  defects  of  substance.  If  a  good 
cause  of  action  be  set  forth  in  the  Declaration,  or  a  good 
defence  in  the  Plea,  or  a  good  reply  in  the  Eeplication,  and 
so  of  every  other  Pleading,  no  matter  how  informal  the 
Pleading  may  be,  it  is  not  liable  to  Demurrer.  The  differ- 
ence in  the  scope  of  the  Demurrer  under  the  old  and  the 
new  sj'stem,  represents  accurately  the  difference  between 
the  two  systems.  All  the  different  forms  of  action,  and  the 
innumerable  technicalities  to  which  they  gave  rise  through- 
out the  whole  course  of  the  Pleadings  down  to  the  judgment 
inclusive,  together  with  the  other  mere  technical  forms  of 
the  old  system,  are  abolished,  as  we  have  already  seen,  and 
will  more  fully  see,  and  consequently  do  not  now  exist  to 
be  objected  to  by  Demurrer.  Neither  does  the  violation  of 
any  Eule,  which  relates  merely  to  form,  that  is  prescribed 
by  the  simplified  system  afford  ground  for  Demurrer.  The 
Court  under  the  Act  of  Simplification  has  such  ample 
power  of  amendment,  as  we  shall  see,  as  to  be  able  to  com- 
pel the  parties  to  plead  in  such  a  way,  as  to  conform  to  that 
fo7-m  of  substance,  which  I  have  expounded  in  the  preliminary 
remarks  of  this  chapter,  and  which  is  exemplified  in  the 
simplified  Forms  given  in  the  Act  of  Simplification,  which 
will  be  considered  in  the  next  chapter  of  this  book.  The 
practical  advantages,  in  thus  getting  rid  of  the  delays,  and 
perplexities  heretofore  attendant  upon  demurrers  for  defects 
in  form  will  be  manifest. 

But  while  the  Act  of  Simplification  has  abolished  De- 
murrer for  defects  of  form,  it  has  made  the  Demurrer,  for 
substance,  special.     Under  the  old  system,  a  general  De- 


RULES    OF   PLEADING.  57 

murrer,  wticli  specified  no  particular  defect,  but  merely 
stated  generally  that  tlie  Pleading  demurred  to  was  insuffi- 
cient in  law,  was  all  that  was  required  to  reach  defects  in 
substance  in  a  Pleading.  The  Simplified  Pleading  has 
changed  this,  and  makes  the  party  demurring,  state  in  what 
particular,  the  Pleading  is  defective  in  substance.  It  may, 
however,  sometimes  happen,  that  the  general  statement  of  a 
General  Demurrer  may  be  as  specific  as  the  case  will  admit 
of.  In  order  not  to  be  embarrassed  by  the  occurrence  of 
such  a  case,  the  Simplified  Pleading  provides  that  the  party 
demurring  shall  first  state  that  the  Pleading  is  bad  in  sub- 
stance,  and  then  state  some  question  of  law  involving  the 
23oint  which  he  intends  to  argue  on  the  Demurrer.  This 
mode,  for  which  a  Form  is  given  in  the  Act,  will  suit  all 
cases  and  obviate  every  practical  difficulty  as  to  precision 
in  the  statement  of  the  cause  of  Demurrer.  The  very  rea- 
sons, which  books  on  Pleading  give  for  the  use  of  a  general 
Demurrer,  show  that  it  ought  never  to  have  been  tolerated, 
and  that  the  Act  of  Simplrfication  is  wise  in  excluding  it. 
"  Where  a  General  Demurrer  (says  Stephen,  p.  160,)  is 
plainly  sufficient,  it  is  more  usually  adopted  in  practice; 
because  the  effect  of  the  special  Form  being  to  apprise  the 
opposite  party  more  distinctly  of  the  nature  of  the  objec- 
tion, it  is  attended  with  the  inconvenience  of  enabling  him 
to  prepare  to  maintain  his  Pleading  in  argument,  or  of  lead- 
ing him  to  apply  the  earlier  to  amend."  Surely,  no  such 
ambuscades,  as  a  general  Demurrer  is  here  described  to  be, 
ought  to  be  allowed  in  proceedings  devised  for  the  adminis- 
tration of  justice. 

The  doctrines  which  we  have  been  considering,  and  the 
Rules  enforcing  them,  arc  embodied  in  the  thirty-sixth, 
thirty-seventh  and  fortieth  sections  of  the  Act  of  Simplifi- 
cation.    The  sections  are  as  follows : 

36.  "  Either  party  may  object  by  Demurrer  to  the  Plead- 
ing of  the  opposite  party,  on  the  ground  that  such  pleading 
does  not  set  forth  sufficient  ground  of  action,  defence,  or 


58  'RULES   OF   PLEADING. 

reply,  as  the  case  may  be.  But  no  pleading  sliall  be  deemed 
insufficient  for  any  defect  "which  could  heretofore  only  be 
objected  to  by  special  demurrer,  nor  for  the  violation  of  any 
rule  hereinafter  prescribed  which  relates  only  to  form,  unless 
specially  provided  for." 

87.  "Every  Demurrer  shall  particularly  express  the 
causes  of  the  same,  not  in  general  terms,  but  in  a  specific 
statement,  of  some  point  of  law  showing  in  what  respect  the 
pleading  is  insufficient  in  substance.  And  the  form  of  a 
Demurrer  shall  be  as  follows,  or  to  the  like  effect : 

"The  Defendant  {or  Plaintiff)  by  his  Attorney  {or  in 
Person)  says  that  the  Declaration  {or  Plea,  d:c.)  is  bad  in 
substance ;" 

and  some  substantial  matter  of  law  intended  to  be  argued 
showing  the  defect  in  the  pleading  shall  then  be  stated; 
and  if  any  Demurrer  without  such  statement,  or  with  a  frivo- 
lous statement,  shall  be  filed,  it  may  be  set  aside  by  the 
Court,  and  judgment  may  be  entered  up  for  want  of  a  plea. 

40.  "  When  issue  is  joined  on  Demurrer,  at  any  stage  of 
the  cause,  the  Court  shall  consider  the  allegations  through 
the  whole  series  of  pleadings,  and  give  judgment  according 
as  the  very  right  of  the  cause  and  matter  in  law  shall  appear 
unto  it,  without  regarding  any  imperfection,  omission,  defec- 
tion, or  lack  of  form,  for  the  party  who  on  the  whole  appears 
to  be  entitled  to  it.  And  no  judgment  shall  be  arrested, 
stayed  or  reversed  for  any  such  imperfection,  omission, 
defect  or  lack  of  form." 

It  is  observable,  that,  by  the  last  clause  of  the  thirty- 
seventh  section,  if  a  Demurrer,  not  conforming  to  the  Kule 
prescribed  in  the  section,  shall  be  filed,  the  Court  may  set 
it  aside,  and  give  judgment  for  want  of  a  plea. 

And  by  the  fortieth  section,  it  is  seen,  that  the  Court, 


RULES    OF   PLEADING.'  59 

upon  issue  joined  on  Demarrer,  at  any  stage  of  tlie  cause, 
shall  look  through  the  whole  case  and  give  judgment  accord- 
ing to  the  real  merits  in  law  of  the  case,  without  any  regard 
to  defects  of  form :  and  this  means,  not  only  what  would  be 
defects  of  form  under  the  old  system,  but  what  are  defects 
of  form  under  the  new;  as  appears  by  these  concluding 
words  of  the  thirty-sixth  section  :  "  nor  for  the  violation  of 
any  rule  hereinafter  prescribed  which  relates  to  form,  unless 
specially  provided  for ;"  and  there  is  no  special  provision 
for  any  formal  defect. 

The  thirty-eighth  section  of  the  Act  of  Simplification 
prescribes  the  form  of  a  Joinder  in  Demurrer ;  and  is  in 
these  words : 

38.  "  The  Form  of  a  Joinder  in  Demurrer  shall  be  as 
follows,  or  to  the  like  effect : 

"  The  Plaintiff  (or  Defendant)  says  that  the  Declaration 
(or  Plea,  cfcc.)  is  good  in  substance." 

"When  the  one  party  has  filed  in  the  cause  a  Demurrer  in 
the  Form  prescribed  by  the  thirty-seventh  section,  and  the 
opposite  party  has  filed  a  *Joinder  in  Demurrer  in  the  form 
prescribed  by  this  section,  the  case  is  ready  for  trial  on  the 
law ;  because  the  facts  stated  in  the  pleading  demurred  to, 
are  admitted ;  as  is  seen  by  the  thirty-ninth  section  of  the 
Act,  which  is  as  follows : 

39.  "  Every  Demurrer  shall  be  taken  as  a  confession  of 
all  the  facts  pleaded  without  regard  to  form." 

Under  the  old  Common  law  pleading,  a  Demurrer  con- 
fessed all  matters  formally  pleaded,  but  not  such  as  were 
informally  pleaded.  But  as  the  Statutes  of  27  Elizabeth, 
ch.o ;  and  4  and  5  Anne,  ch.  16,  made  it  necessary  to  object 

*  N.  B.  It  is  not  necessary  to  file  a  Joinder  iu  Demurior  at  all;  as 
an  issue  in  law  is  formed  without  it. 


60  RULES    OF    PLEADING. 

specially  to  defects  of  mere  form,  and  no  longer  allowed 
them  to  be  raised  upon  a  general  Demurrer :  by  force  of 
these  Statutes,  a  general  Demurrer  would  confess  all  matters 
pleaded  informalhj  as  well  as  those  pleaded  formally.  (1st 
Saund.  E.  337,  note  3.)  So  by  this  section  of  the  simplified 
pleading,  all  matters  are  confessed  by  a  demurrer  without 
regard  to  form. 

By  the  forty-first  section  of  the  Act  of  Simplification, 
there  shall  not  be  a  Demurrer  upon  a  Demurrer ;  because 
there  is  already  an  issue  in  law  to  be  decided.  This  was 
the  old  law. 

41.  "  There  shall  not  be  a  Demurrer  upon  a  Demurrer." 


OF  THE  EFFECT  OF  PLEADING  OVER  WITHOUT 
DEMURRER. 

It  may  sometimes  happen,  that  a  party  may  overlook  a 
substantial  defect  in  his  adversary's  pleading,  and  instead  of 
demurring,  plead  to  it.  It  thus  becomes  necessary  to  pro- 
vide for  such  a  contingency.  The  Act  of  Simplification 
contains  two  rules  on  the  subject,  which  answer  all  the 
exigencies  of  such  cases.  The  first  is,  that  where  the  De- 
claration is  defective  in  substance,  and  the  defendant  pleads 
over,  and  his  plea  supplies,  by  express  statement,  the  defect 
in  the  declaration,  such  defect  shall  be  thereby  cured.  Thus, 
in  an  action  of  trespass  for  taking  a  hook,  where  the  plain- 
tiff omitted  to  allege  in  the  declaration,  as  he  should  have 
done,  that  it  was  Ins  hook,  or  even  that  it  was  in  his  posses- 
sion, and  the  Defendant  pleaded  a  matter  in  confession  and 
avoidance  justifying  his  taking  the  hook  out  the  Plaintiff'' s 
hands,  the  Court,  on  motion  in  arrest  of  judgment,  held  that 
as  the  plea  itself  showed  that  the  hook  was  in  the  possession 
of  the  Plaintiff,  the  objection,  which  would  otherwise  have 
been  fatal,  was  cured.  (Steph.  Plead,  p.  165.)  In  this  case 
it  appeared  clearly  to  the  Court,  from  the  pleadings,  that 


RULES   OF    PLEADING.  61 

the  Plaintiff  was  entitled  to  recover.  But  tlie  rule  should 
be  confined,  as  it  is  in  the  Act  of  Simplification,  to  an 
express  statement  in  the  plea  of  the  fact  omitted,  and  not 
extended  to  an  implied  statement  or  admission  of  the  fact. 
And  it  is  confined,  too,  in  its  scope,  to  a  mere  omission  of 
some  fact  or  facts ;  otherwise  the  rule  would  have  trenched 
upon  another  rule,  which  will  be  considered  hereafter,  that 
a  Plaintiff  must  recover  upon  the  ground  stated  in  his  declara- 
tion, and  not  upon  another  disclosed  by  the  Defendayifs  plea. 
The  Eule  under  consideration  is  contained  in  the  forty- 
second  section  of  the  Act  of  Simplification,  which  is  as 
follows : 

42.  "If  a  declaration  be  defective  in  substance,  and  the 
Defendant  pleads  over ;  and  the  plea  supplies,  by  express 
statement  of  fact,  but  not  otherwise,  the  defect  in  the  de- 
laration,  such  defect  shall  be  thereby  cured." 

The  other  Rule  on  this  point  is  that  when  the  issue 
joined  necessarily  required,  on  the  trial,  proof  of  the  facts 
omitted  or  imperfectly  stated,  the  defect  shall  be  cured  by 
verdict.  It  is  futile  to  object,  after  trial,  to  an  omission  in 
the  statement  of  a  cause  of  action,  when  the  cause  of  action 
has  been  found  by  a  jury  upon  proof  of  it.  This  rule,  how- 
ever, should  be  applied,  by  the  Court,  with  great  caution. 
It  lies  so  nearly  upon  the  boundary  between  expediency 
and  inexpediency,  as  to  require  circumspection  in  a})plying 
it  to  cases  as  they  arise.  The  rule  is  embodied  in  the  forty- 
thii-d  section  of  the  Act  of  Simplification,  in  these  words: 

43.  "Where  there  is  any  imperfection,  or  omission  Avhat- 
ever  in  any  pleading,  which  would  be  a  fatal  objection  on 
Demurrer,  yet  if  the  issue  joined  be  such  as  necessarily 
required  on  the  trial  proof  of  the  facts  so  imperfectly  stated 
or  omitted,  such  imperfection  or  omission  shall  be  cured  by 
the  verdict." 


62  •      RULES   OF    PLEADING. 


■  OF  TRAVERSE. 


The  Traverse  or  Denial  is  the  piece  of  tlie  macliinery 
of  Pleading  which  next  comes  under  consideration.  This 
is  by  far  the  most  important  plea  in  the  whole  system ; 
because  of  its  more  frequent  use  than  any  other.  Great 
difficulty,  too,  has  been  experienced  in  all  eras  of  the  law 
in  developing  its  principles,  and  forming  Rules  for  its  prac- 
'  tical  guidance.  The  Act  of  Simplification  has  made  great 
changes  in  this  part  of  Pleading.  In  the  old  system,  there 
were  a  great  many  forms  of  Traverse  called  General  Issues, 
and  the  Replication  de  injuria^  (Steph.  Plead.  172-5 ;)  and 
also  a  Special  Traverse  with  an  absque  hoc.  (Steph.  Plead,  p. 
188,  198.)  By  the  Act  of  Simplification,  all  those  forms  of 
Traverse  are  abolished,  and  two  forms  only  are  substituted 
in  their  stead. 

The  reasons  for  this  change  are  these.  The  General 
Issues,  instead  of  being  alike  in  their  scope,  as  their  com- 
mon name  would  import,  were  extremely  diverse.  Under 
some  of  them,  almost  any  legal  and  equitable  defence  might 
be  given  in  evidence.  They  merely  denied  h'ahility,  and 
any  thing  which  tended  to  show  no  liability  could  be  offered 
in  evidence.  This  virtually  abrogated  the  fundamental  dis- 
tinction between  pleas  by  way  of  Traverse,  and  pleas  by 
way  of  Confession  and  Avoidance ;  which  the  system  of 
Pleading  was  studious  to  preserve  in  theory,  because  the 
exigencies  of  fair  trial  require  it,  and  yet  in  these  General 
Issues  it  practically  disregarded  it.  In  the  most  compre- 
hensive General  Issues,  while  the  p?ea  was  in  denial,  the 
evidence  was  often  in  confession  and  avoidance.  Thus  the 
proof  did  not  conform  to  the  issue ;  as  it  always  ought  to 
do,  to  insure  fair  trials  without  surprise  to  either  party. 
And  besides,  as  the  General  Issues  differed  in  comprehen- 
siveness, a  great  many  questions  as  to  the  admissibility  of 
evidence,  thereby  arose  in  practice.  Under  some  General 
Issues,  any  defence,  as  I  have  already  said,  could  be  given 


RULES   OF   PLEADING.  63 

in  evidence.  But  otliers  were  somewliat  narrower,  and 
others  narrower  still ;  until  the  form,  of  the  issue,  from 
being  nothing,  because  it  admitted  every  thing  to  be  proved, 
became  every  thing,  because  it  admitted  scarcely  any  thing 
to  be  proved.  These  anomalies  in  the  doctrine  of  General 
Issues  led  to  uncertainties  in  practice,  and  difficulties  as  to 
the  admissibility  of  evidence.  And  besides,  little  might  be 
kno^m  to  either  party,  under  these  Greneral  Issues,  of  what 
would  turn  out  to  be  the  real  question  between  them.  The 
Plaintiff  might  be  entirely  in  the  dark  as  to  the  matters  to 
be  set  up  in  answer  to  his  claim ;  and  thus  be  exposed  to 
defeat  from  facts,  which,  if  he  had  known  them,  would  have 
induced  him  to  abandon  his  case,  and  thereby  save  the 
trouble  and  expense  of  a  trial. 

I  will  now  explain  the  nature  of  the  Special  Traverse 
with  an  absque  hoc.  The  reasons  for  abolishing  it  will 
appear,  when  we  come  to  consider  the  form  of  plea  which 
has  been  substituted  for  it,  in  the  new  system. 

The  great  object  of  Pleading,  as  I  have  endeavored  to 
show,  is  to  bring  the  parties,  as  soon  as  practicable,  to  a 
definite  issue  or  question  which  involves  the  whole  matter 
in  dispute.  In  order  to  do  this,  the  Courts  have  built  up 
the  system  of  Pleading  in  such  a  form,  as  to  require  the 
parties  so  to  state  their  cases,  that  the  allegations  of  the 
one  party  shall  be  answered,  by  the  other,  directly;  and  not 
leave  the  sense  to  be  collected  by  inference  or  argument. 
The  Courts,  therefore,  established  it  as  a  fundamental  rule, 
that  every  affirmative  shall  be  answered  by  an  express  and 
direct  denial.  On  this  ground  is  based  the  rule  against, 
what  is  called,  argumentativeness^  which  means  that  no  plea 
shall  be  argumentative,  or  a  mere  indirect  denial.  The  rule 
excludes  all  indirect  denials. 

But  the  purposes  of  justice  sometimes  require  that  matter, 
which  is  merely  an  indirect  denial  of  the  adverse  allegations, 
shall  be  pleaded  specially.  It  is  sometimes  impoi'tant,  that 
the  special  matter,  of  the  defence  relied  on,  should  be  stated 
in  the  plea,  in  order  that  the  Plaintiff  may  have  the  privi- 


64  RULES   OF    TLEADING. 

lege  of  demurring  to  it,  if  he  thinks  it  insufficient  in  law  as 
a  defence  ;  without  the  delay,  expense  and  troul)le  of  raising 
the  same  question  of  law,  by  a  prayer  to  the  Court,  upon 
the  same  facts  when  brought  out  by  the  Defendant  in  evi- 
dence upon  a  trial  before  a  jury.  It  was  to  accomplish  this 
purpose,  loithout  violating  the  rule  against  argumentativeness^ 
that  this  peculiar  species  of  plea  was  invented  by  the  subtle 
ingenuity  of  the  ancient  pleaders.  The  plea  consists  of  two 
substantial  parts :  an  Inducement^  and  an  Absque  hoc^  as 
they  are  respectively  called.  The  Inducement  contains  the 
*■  special  matter,  which  is  an  indirect  denial  of  the  Plaintiff's 
p  case.  The  Absque  hoc  contains  a  direct  denial  of  the 
Plaintiff's  case;  and  is  added  to  the  indirect  denial  con- 
tained in  the  Inducement,  to  conform  the  plea  to  the  rule 
against  argumentativeness,  which  requires  that  every  plead- 
ing by  way  of  Traverse  shall  be  a  direct  denial  of  the  adverse 
allegation.  As  this  special  matter  was  pleaded  in  the  In- 
ducement merely  to  enable  the  Plaintiff  to  deriw.r  to  it,  he 
could  not  plead  to  it;  and  if  he  did  not  choose  to  demur,  he 
could  only  reply  to  the  Absque  hoc,  by  merely  repeating 
the  allegations  of  the  Declaration,  which  the  barbarous  for- 
mula of  the  Absque  hoc  denied  directly.  This  was  the  most 
artificial  and  subtle  plea  of  the  ancient  system  of  Pleading ; 
and  though  it  was  seldom  used,  still  it  was  essential  to  a 
complete  system  of  Pleading  in  facilitating  the  settlement 
of  cases  that  sometimes  occurred  in  the  administration  of 
of  the  law.* 

That  peculiar  form  of  Traverse  called  the  Eeplication  de 
injuria  is  also  abolished  by  the  Act  of  Simplification.  This 
species  of  Traverse  was  confined  to  actions  of  Trespass  and 
Trespass  on  the  case;  and  even  in  these  actions  could  only 
be  used  in  the  Eeplication.  This  Replication  alleged  that 
the  Defendant  did  the  act  complained  of,  of  his  oiun  ivrong^ 
and  loithout  the  cause  alleged.  In  the  two  actions  mentioned, 
this  was  the  proper  form  of  replication  whenever  the  plea 
in  bar  was  traversed  by  the  Plaintiff.     But  yet,  if  the  plea 

*See  the  Form  of  a  Special  Traverse,  Stepli.  Plead,  p.  190. 


RULES    OF    PLEADING.  65 

in  bar  consisted  of  matter  of  either  title  or  interest;  or  autho- 
rity of  law;  or  authority  in  fact  derived  from  the  Plaintiff; 
or  matter  of  record:  tins  replication  could  not  be  used.  (Step. 
Plead,  pp.  186, 188,  276,  383.)  It  is  sufficiently  manifest  that 
this  form  of  traverse  makes  distinctions  between  defences 
where  none  exist  in  the  nature  of  things ;  and  is  an  extreme 
anomaly  even  in  the  old  system  of  Pleading. 

These  different  forms  of  Traverse  are  abolished,  and  two 
other  forms  substituted  for  them,  by  the  forty-fourth  section 
of  the  Act  of  Simplification,  in  these  words : 

4-4.  "  There  shall  be  only  two  forms  of  Traverse,  viz. :  a 
Direct  Traverse,  and  an  Indirect  Traverse.  The  General 
Issues,  and  the  Replication  de  injuria^  and  the  ^Formal 
Traverse  with  an  Absque  hoc  shall  not  be  used," 

I  will  now  proceed  to  consider  what  has  been  substituted, 
for  the  Greneral  Issues  and  the  Replication  de  injuria.,  in  the 
Simplified  Pleading.  And  then  I  shall  consider  the  sub- 
stitute for  the  Formal  or  Special  Traverse. 


OF  DIRECT  TRAVERSE. 

The  Act  of  Simplification  has  substituted  for  the  General 
Issues,  a  Direct  Traverse  consisting  of  a  direct  denial  of  the 
facts  alleged  by  the  opposite  party.  By  this  form  of  denial, 
the  evidence  is  conformed  to  the  issue ;  and  the  anomalies, 
relative  to  the  admissibility  of  evidence  under  the  General 
Issues,  are  removed  from  practice.  No  evidence  can  be 
adduced  by  the  Defendant  but  such  as  tends  to  contradict, 
that  is,  negative,  the  allegations  of  the  Plaintiff.  Matter  of 
excuse  or  justification,  or  of  discharge  or  release,  cannot  be 
>^  adduced  under  the  Direct  Traverse.  The  Rule,  regulating 
the  matter,  is  contained  in  the  forty-fifth  section  of  the  Act 
of  Simplification,  in  these  words : 

*  The  Special  Traverse  is  also  called  Formal. 
5 


66  RULES   OF    PLEADING. 

45.  "  A  Direct  Traverse  sliall  consist  of  a  direct  denial  of 
the  facts  alleged  by  the  opposite  party ;  and  it  shall  always 
be  expressed  in  the  negative,  unless  opposed  to  a  precedent 
negative,  then  it  may  be  expressed  in  the  affirmative." 

In  order  to  bring  the  Replication  de  injuria^  or  rather  the 
instances  or  cases  in  which  it  Avas  the  proper  form  of  tra- 
verse under  the  old  system,  within  the  principles  of  the 
Direct  traverse,  the  Act  of  Simplification  makes  it  impera- 
tive on  a  Plaintiff,  in  all  actions  for  injury  to  person  or 
character  or  property,  when  matter  of  excuse  or  justification, 
is  pleaded  by  the  Defendant,  to  deny  in  his  Replication,  the 
excuse  or  justification  pleaded,  in  the  words  of  the  excuse 
or  justification ;  as  was  done  even  under  the  old  system,  as 
I  have  shown,  when  the  Defendant's  plea  consisted  either 
of  matter  of  title  or  interest^  or  authority  of  law^  or  authority 
of  fact  derived  from  the  plaintiff,  or  matter  of  record.  There 
is  no  reason  in  the  nature  of  the  special  cases  of  Trespass 
and  Trespass  on  the  case,  for  a  peculiar  form  of  traverse,  in 
replying  to  a  Defendant's  plea  of  excuse  ov  justification.  -The 
Act  of  Simplification  therefore  conforms  these  cases  to  the 
General  System,  by  a  Rule  in  the  forty-sixth  section,  in 
these  words : 

46.  "  Where,  to  any  action  for  injury  to  person  or  character, 
or  property,  any  matter  of  excuse  or  justification  is  pleaded, 
the  Plaintiff  shall,  in  the  Replication,  deny  it  in  the  words 
of  the  excuse  or  justification  or  to  the  like  effect,  or  may 
plead  some  special  defence." 


OF  INDIRECT  TRAVERSE. 

I  will  next  consider  what  has  been  substituted  in  the 
simplified  pleading  for  the  Special  Traverse  with  an  absque 
hoc.  In  order  to  understand  the  substitute,  it  will  be  well, 
to  refer  to  what  has  been  said  of  the  purpose  for  which  the 


RULES    OF    PLEADING.  67 

Special  Traverse  was  devised.     It  was  to  enable  tHe  Defend- 
ant to  plead  the  special  matter  of  his  defence,  in  order  that 
the  plaintiff  might  know  what  it  is,  and  if  he  thought  it 
insuf&cient  in  law  as  a  defence,  demur  to  it,  and  draw  out 
the  question  of  law  from  the  issue  of  fact,  and,  perhaps,  have 
the  case  decided,  without  the  trouble  and  expense  of  a  jury 
trial.     But  under  the  old  system  of  pleading,  special  de- 
fences, which  amount  to  an  indirect  denial,  could  not  be 
pleaded  except  in  the  barbarous  form  of  a  Special  Traverse 
with  an  absque  hoc.     As  it  will  sometimes,  though  not  often, 
happen,  that  special  matter  amounting  to  an  indirect  denial 
should  be  pleaded,  the  Act  of  Simplification  has  devised  a 
mode  of  pleading  an  indirect  denial  without  any  of  the  tech- 
nicalities which  encumbered  it  under  the  old  system.     The 
new  mode  of  pleading  the  indirect  denial,  of  course,  violates 
the  rule  against  argumentativeness^  as  any  such  form  of  plea 
necessarily  must.     But  the  su]3posed  evil  of  such  violation 
is  prevented,  by  the  rules  which  regulate  the  reply  to  such 
a  pleading  under  the  new  system.      The   purpose  of  the 
rule  against  argumentativeness  was  to  compel  the  parties  to 
come  to  issue.     It  supposes  that  if  indirect  denials  were 
allowed,  the  parties  might  plead  on  alternately,  and  never 
come  to  issue.     But  this  difficulty  is  prevented,  under  the 
new  pleading,  by  compelling  the  Plaintiff,  when  an  indirect 
denial  is  pleaded  to  his  declaration,  if  he  does  not  demur  to 
it,  to  deny  its  allegations  directly ;  or  else  plead  some  matter 
of  excuse  or  justification  or  discharge ;  and  in  either  case,  the 
Defendant  shall  join  issue.    By  either  of  which  Replications 
and  Joinder  by  the  Defendant,  an   issue  will   be  formed. 
And  thus  the  purpose  of  the  Special  Traverse  is  accom- 
plished, without  any  of  its  embarrassments.     The  Direct 
Traverse,  however,  will  be  generally  used,  and  therefore  is 
the  more  important  plea.  The  Rules  regulating  the  Indirect 
Traverse,  are  embraced  in  the  forty-seventh  and  forty-eighth, 
sections  of  the  Act  of  Simplification,  in  these  words : 

47.  "All  defences,  except  a  direct  denial  of  the  facts 
alleged,  shall  bo  pleaded  specially." 


68  RULES   OF    PLEADING. 

48.  ""Wherever  a  Defendant  sliall  plead  special  facts 
■which  deny  indirectly  the  facts  alleged  by  the  Plaintiff", 
if  the  Plaintiff  do  not  demur,  he  shall  in  the  Keplication, 
either  deny  directly  the  special  facts  so  pleaded,  or  plead 
some  matter  by  way  of  confession  and  avoidance,  and  in 
either  case  the  defendant  shall  join  issue." 

It  must  be  obvious  to  the  reader,  from  the  provisions 
already  passed  in  review,  that  the  primary  object  of  the 
Act  of  Simplification  is  to  produce  special  issues  regulated 
by  the  principles  of  common  logic,  and  unfettered  by  arti- 
ficial technicalities ;  so  that  the  admissibility  of  evidence, 
to  prove  or  disprove  the  affirmative  of  the  issue,  can  be 
judged  of  by  our  natural  reason ;  the  evidence  being  con- 
formed to  the  ordinary  meaning  of  the  language  of  which 
the  issue  is  formed.  If  the  affirmative,  for  example,  be  a 
promise,  and  the  Defendant  denies  the  promise,  all  the 
evidence  will  be  confined  to  the  simple  issue,  of  promise  or 
no  promise.  "With  a  view  to  accomplish  this  purpose,  all 
the  General  Issues  (which  were  certain  pleas  of  Traverse 
appropriated,  by  ancient  usage,  as  the  different  forms  of 
general  denial,  to  the  different  forms  of  action,)  are  abol- 
ished ;  as  we  have  seen.  But  this  does  not  reach  the  evil 
of  the  class  of  cases  to  which  the  general  issue  of  Non- 
assumpsit  applies.  Because  the  plea  must  still  be,  virtually 
the  same ;  as  a  promise  would  be  still  alleged  in  the  Decla- 
ration, and  must  be  denied.  The  action  of  Assumpsit,  as  it 
was  called,  was  the  proper  remedy  for  the  breach  of  all 
simple  contracts,  whether  express  or  implied.  In  cases  of 
implied  contracts  the  promise  was  a  mere  fiction;  and  yet 
all  the  Pleadings  were  framed  as  if  there  was  a  promise  in 
fact.  There  had  been  established,  as  a  principle  of  law,  that 
a  promise  must  be  implied  wherever  there  is  an  existing 
debt  or  liability.  This  was  done  by  the  Courts  in  order  to 
bring,  a  large  class  of  cases,  within  the  scope  of  the  action 
of  Assumpsit,  which  could  before  only  be  reached  by  an 
action  of  Debt.     The  Declaration  stated  the  special  facts  of 


RULES   OF    PLEADING.  69 

tlie  case  showing  tlie  indebtedness  or  liability;  and  tben 
said,  tliat  being  so  indebted  or  liable,  in  consideration 
thereof,  the  Defendant  made  a  certain  proviise  to  the  Plaintiff. 
The  General  Issue  then  was.  That  the  Defendant  did  not 
undertake  and  promise  in  manner,  &c,  which  is  called  the 
plea  of  N'on-assumpsit.  According  to  the  language  of  the 
plea,  it  merely  denies  the  fact  of  the  promise  set  forth  in  the 
Declaration.  But  as  the  law  implies  a  promise,  wherever 
there  is  an  existing  debt  or  liability — and  the  Declaratioli 
set  forth  facts  showing  such  debt  or  liability,  the  Plaintift 
maintained  his  action  not  by  proving  a  promise,  as  there 
was  in  fact  none,  but  by  proving  the  debt  or  liability  on 
which  the  implied  promise  was  raised  by  the  law ;  and  the 
Defendant  was  of  course,  under  his  plea  of  no  j^romise,  allowed 
to  prove  any  circumstance  which  tended  to  disprove  the 
debt  or  liability;  such  as  performance  or  a  release,  &c. 
This  being  the  necessary  scope  of  the  General  Issue  in  im- 
plied promises,  the  Courts  extended  it  to  express  promises. 
Therefore,  in  any  case  of  Assumpsit,  the  Defendant  could 
under  the  General  Issue  show  not  only  that  no  promise  was 
made,  or  that  the  promise  was  an  invalid  one ;  but  could 
show  any  matter,  with  few  exceptions,  which  tended  to  deny 
the  debt  or  liability.  Until  then,  the  principle  of  law,  That 
an  existing  debt  or  liability  imjylies  a  promise^  be  changed,  the 
scope  of  a  plea  of  no  promise  must  be  the  same  as  the 
General  Issue,  Non-assumpsit.  This  principle  of  law  is  so 
pervasive  of  our  books  on  contracts,  that  it  cannot  be 
changed.  The  Act  of  Simplification  has,  therefore,  reme- 
died the  evil,  by  changing  the  mode  of  Pleading  in  cases  of 
implied  contracts  or  promises.  By  the  fifty-third  section, 
which  will  be  reviewed  hereafter,  the  statement  of  23^'omises 
in  Indebitatus  counts,  as  counts  or  declarations  on  implied 
promises  are  called,  shall  be  omitted.  And  by  the  hundred 
and  thirty-seventh  section  of  the  Act,  the  Forms  of  Declara- 
tion, from  one  to  twelve  inclusive,  have  been  prescribed  for 
the  cases  where  under  the  old  system,  were  declared  on  im- 
plied promises.     And  by  the  same  section  of  the  Act,  a 


TO  RULES   OF   TLE  A  DING. 

Plea  has  been  prescribed,  applicable  to  these  Declarations, 
in  these  words :  "  That  he  never  was  indebted  as  alleged." 
By  these  forms  of  declaration  and  this  form  of  plea,  a  special 
issne  is  formed  according  to  the  real  facts  of  the  cases,  where 
jpromises  were,  under  the  old  system,  implied  and  made  the 
basis  of  the  Pleadings.  The  Pleadings  confine  the  parties 
to  the  indebtedness  or  liability,  as  was  the  case  before  the 
doctrine  of  implied  promises  was  invented  by  a  perverse 
ingenuity. 

In  cases  of  express  promises,  the  promise  must  be  stated 
in  the  Declaration ;  and  the  Act  of  Simplification  has  pre- 
scribed two  forms,  13  and  14,  as  examples;  and  has  pre- 
scribed a  Plea  in  such  cases  where  the  promise  is  denied, 
"  That  he  did  not  promise  as  alleged."  Under  this  Plea, 
though  it  is  equivalent  in  language  to  the  General  Issue  of 
Non-assumpsit,  the  parties  are  confined  to  promise  or  no  pro- 
mise. Because  by  the  fiftieth  section  of  the  Act  of  Simplifi- 
cation, which  will  be  presently  considered,  all  matter  of 
justification  or  excuse,  or  of  discharge  or  release,  shall  be 
pleaded  specially,  and  consequently  can  never  be  given  in 
evidence  under  any  Plea  of  Traverse.  But  as,  notwith- 
standing the  fiftieth  section,  any  matter,  such  as  duress  and 
other  like  matter  which  shows  that  there  never  was  a  valid 
promise,  though  there  was  a  promise  in  fact,  might  be  given 
in  evidence  under  the  plea  prescribed  for  express  promises, 
it  was  necessary  to  institute  a  Rule  requiring  them  to  be 
pleaded  specially.  The  Act  of  Simplification  has,  there- 
fore, by  the  forty-ninth  section,  required  such  matters  to  be 
pleaded  specially.     The  section  is  as  follows  : 

49.  "  Any  defence,  showing  that  a  parol  contract  or  deed 
sued  on  is  void  or  voidable,  or  the  fact  that  the  alleged 
deed  was  delivered  to  a  third  person  as  an  escrow,  shall  be 
pleaded  specially." 

This  section  of  the  Act  of  Simplification  also  narrows 
the  issues  in  cases  of  implied  promises,  to  which  under  the 


RrLESOFPLEADIXG.  •  71 

Simplified  Pleaclincr,  the  Plea,  "That  lie  never  was  indebted 
as  alleged,"  is  prescribed  as  a  General  Traverse.  Because 
the  logical  import  of  the  Plea  is  such,  that  any  matter  which 
tends  to  show,  that  there  never  was  a  valid  liability — such 
as  fraud,  infancy,  coverture,  lunacy  and  the  like — could  be 
given  in  evidence  under  it,  in  cases  where  such  matters 
would  be  a  defence.  And  implied  promises,  though  no 
longer  declared  on  as  such,  are  not  abolished,  and  are  em- 
braced in  the  section  under  the  designation,  "  Parol  Con- 
tract." (1st  Chit.  Plead,  p.  87.)  Therefore  all  matters  which 
show  that  the  liability  or  obligation  is  void  or  voidable, 
must  be  pleaded  to  any  one  of  the  twelve  declarations  pre- 
scribed for  such  cases;  and  cannot  be  given  in  evidence 
under  the  general  Plea  prescribed  for  them. 

This  section  is  seen  to  embrace  cases  of  deeds  as  well  as 
parol  contracts,  sued  on,  and  requires  any  defence  showing 
the  deed  to  be  void  or  voidable,  or  that  it  was  delivered  as 
an  escrow,  to  be  pleaded  specially.  Under  the  old  sj^stem 
of  pleading,  Debt  was  the  proper  form  of  action  on  a  sealed 
instrument  or  deed.  And  if  the  Defendant  was  a  party  to 
the  deed  and  wished  to  traverse  it  he  was  compelled  to  plead 
non  est  factum;  as  this  was  the  General  Issue  established  by 
ancient  usage  to  such  action.  Under  this  Plea,  the  De- 
fendant might  contend,  either  that  he  never  executed  the 
deed,  or  that  its  execution  was  absolutel;^  void  by  reason  of 
lunacy,  infancy,  coverture  or  other  like  disability,  or  that 
he  delivered  it  as  an  escrow.  Now,  in  the  Act  of  Simplifi- 
cation, as  we  shall  see  hereafter,  there  is  a  Plea,  "  That  the 
alleged  deed  is  not  his  deed."  This  Plea  must  have  the 
same  scope  as  the  General  Issue  non  est  factum^  unless  it  be 
limited  by  some  express  rule.  Because,  under  it,  any 
matter  showing  that  the  deed  was  void  or  was  delivered  as 
an  escrow  could  be  given  in  evidence,  just  as  under  the 
General  Issue  for  which  it  has  been  substituted,  and  to 
which  it  is  equivalent  in  language. 

In  order,  therefore,  to  draw  out  the  defences  of  duress, 
infancy,  lunacy,   coverture,  delivered   as   an   escrow,  and 


72  RULES   OF    TLEADING. 

other  like  matters,  from  the  General  Traverse  formed  by 
the  Simplified  Plea  which  we  have  been  considering,  into 
the  Pleadings,  it  was  necessary  to  have  the  Special  Kule 
contained  in  the  forty -ninth  section  of  the  Act  of  Simpli- 
fication. 

Uniformity,  too,  is  gained  by  the  Eule  contained  in  this 
section.  Under  the  plea  of  Non-assumpsit^  matters  which 
show  the  contract  to  be  void  or  voidable  could  be  given  in 
evidence ;  but  under  the  plea  of  non  est  factum^  matters 
which  show  the  deed  to  be  void  could  be  given  in  evidence, 
while  matters  which  show  it  to  be  voidable  only  could  not, 
but  must  bo  pleaded.     (Steph.  Plead,  p.  177,  note  X.) 

OF  CONFESSION  AND  AVOIDANCE. 

The  next  subject  to  be  considered  in  the  order  of  the  Act 
of  Simplification,  is  the  pleas  of  justification  and  excuse, 
and  of  discharge  and  release,  called  pleas  by  way  of  Con- 
fession and  Avoidance.  The  pleas  of  justification  and  excuse 
confess  the  act  charged :  but  avoid  it  by  showing  that  the 
Plaintiff  never  had  any  right  of  action,  because  the  act 
charged  was  lawful ;  as  that  the  battery  charged  was  in  self- 
defence.  The  pleas  of  discharge  and  release  admit  that  the 
Plaintiff  once  had  a  right  of  action,  but  avoid  it,  by  show- 
ing that  it  is  discharged  or  released  by  some  matter  sub- 
sequent. (Steph.  Plead,  pp.  219-20.)  As  a  great  leading 
purpose  of  the  simplified  pleadings  is  to  make  the  evidence 
conform  to  the  form  of  the  issue  in  every  case,  matters  of 
Confession  and  Avoidance  cannot  be  given  in  evidence 
under  the  issue  formed  by  a  traverse  in  any  instance  what- 
ever. For  if  the  Defendant  be  charged  with  an  express 
promise,  and  only  such  promises  can  now  be  declared  on  as 
promises,  and  his  case  be,  that  after  making  the  promise  it 
was  released  or  performed^  this  plainly  confesses  and  avoids  the 
declaration ;  and  to  allow  the  Defendant,  to  give  this  in  evi- 
dence, under  the  denial  of  a  'promise,  as  the  old  pleadings  did, 
is  to  lose  sight  of  the  distinction  between  the  two  great  classes 


RULES   OF   PLEADING.  73 

.  of  i^leas  in  bar,  those  by  way  of  Traverse  and  those  by  way 
of  Confession  and  Avoidance;  a  distinction  that  cannot  be 
broken  down  without  great  damage  to  the  just  administration 
of  the  law.  Such  defences  therefore  should  be  pleaded. 
Accordingly  the  Act  of  Simplification  requires  such  defences 
to  be  pleaded  specially,  as  they  ought  always  to  have  been 
from  the  necessities  of  fair  trial,  when  the  form  of  the  issue 
indicates  that  the  facts  are  denied  and  not  justified.  And  as 
justification  or  excuse  is  a  conclusion  of  law  which  results 
from  a  given  state  of  facts,  the  facts  should  be  set  forth  in 
the  pleadings,  that  the  Court  may  see  whether  they  are  a 
good  defence,  and  the  opposite  party  have  the  opportunity  of 
demurring  to  them.  The  rule  regulating  pleas  by  way  of 
Confession  and  Avoidance  is  embraced  in  the  fiftieth  sec- 
tion of  the  Act  of  Simplification,  in  these  words : 

50.  "  Any  ground  of  defence,  that  admits  the  facts  alleged 
in  the  Declaration  or  in  any  other  pleading,  but  avoids 
their  legal  effect,  by  some  matter  of  justification,  or  excuse, 
or  of  discharge  or  release,  shall  be  specially  pleaded." 

In  the  law  regulating  pleas  in  Confession  and  Avoidance, 
there  was  a  fiction  called  "  Express  Color."  By  this  fiction, 
a  plea  which  in  reality  is  not  a  plea  in  Confession  and  Avoid- 
ance, was  clothed  in  the  garb  of  one  by  a  fictitious  confes- 
sion which  the  opposite  party  was  not  allowed  to  gainsay 
though  he  knew  it  to  be  false.  Every  pleading  by  way  of 
Confession  and  Avoidance  must  give  color  as  it  is  called  in 
technical  language,  that  is,  must  admit  an  apparent  rigid  in 
the  opjpjosite  party ^  and  rely  upon  some  new  matter  by  which 
that  apparent  right  is  defeated.  For  example,  a  Defendant 
is  charged  with  a  breach  of  covenant.  The  Defendant  ad- 
mits in  his  plea,  that  he  executed  the  covenant  and  com- 
mitted the  breach,  and  would,  therefore,  prima  facie,  be 
chargable  with  the  damage:  but  alleges  that  the  Plaintiff 
afterwards  executed  to  him  a  release.  The  Plaintifi',  in  his 
Replication  admits  that  such  release  was  executed  as  alleged 


74  RULES   OF   PLEADING. 

in  the  pica ;  and  the  Defendant  would  tliereby  be  apparently 
discliarged :  but  alleges  that  the  release  was  obtained  by 
duress.  In  this  case,  the  plea  gives  color  to  the  Declaration ; 
and  the  Replication  gives  color  to  the  plea.  The  plea  must 
from  its  very  nature  give  color,  that  is,  admit  an  apparent 
right ;  else  it  is  not  a  plea  by  way  of  Confession  and  Avoid- 
ance. This  inherent  quality  in  the  very  nature  and  struc- 
ture of  a  Pleading  by  way  of  Confession  and  Avoidance  is 
called  implied  color  in  the  old  pleading,  to  distinguish  it 
from  another  kind  which  was  in  some  instances  inserted  in 
a  pleading,  to  give  it  the  appearance  or  form  of  such  a 
pleading,  called  '■'express  color."  This  express  color  is  "a 
feigned  matter  j^leaded  by  the  Defendant  in  an  action  of 
trespass,  from  which  the  Plaintiff  seems  to  have  a  good 
cause  of  action,  whereas  he  has  in  truth  only  an  appearance 
or  color  of  case."  (Steph.  Plead,  p.  225.)  As  this  fictitious 
matter  was  inserted  only  to  give  the  plea  a  formal  suffi- 
ciency, the  Plaintiff  was  not  allowed  to  contest  the  fictitious 
matter ;  and  as  though  pleading  was  a  masquerade,  the  plea 
was  introduced  in  disguise  where,  according  to  the  facts  of 
the  case  and  the  fundamental  rules  of  the  old  system,  it 
could  not  be  in  its  naked  truth.  This  form  of  plea,  like 
the  Special  Traverse,  was  invented  for  the  purpose  of  bring- 
ing the  legal  questions  involved  in  the  facts  of  the  defence 
in  the  personal  action  of  trespass  in  which  alone  it  was,  at 
last,  used,  before  the  Court,  and  withdrawiug  them  from  the 
jury.  It  was  confined  to  pleas  and  did  not  extend  to  other 
pleadings.  (Steph.  Plead,  pp.  229-30.)  The  Act  of  Simpli- 
fication by  the  fifty -first  section  has  abolished  Express  Color 
in  these  words : 

51.  "  The  fiction  of  Express  Color  shall  not  be  allowable." 

We  have  now  passed  in  review,  the  Rules  defining  the 
functions  and  forms  of  the  different  pieces  of  the  machinery 
of  the  simplified  pleading.  The  machinery  of  pleading  con- 
sists of  the  Declaration,  the  Demurrer,  the  Pleas  of  Direct 


RULES   OF   PLEADING.  75 

and  Indirect  Traverse,  and  the  Plea  by  way  of  Confession 
and  Avoidance.  It  lias  been  shown  that  this  machinery 
is  much  more  simple  and  natural  than  the  old.  All  the 
Genera]  Issues,  with  the  perplexities  in  practice  produced 
by  their  differences  in  comprehensiveness,  have  been  abol- 
ished ;  and  so  has  the  Special  Traverse  with  its  fine-woven 
cobwebs  of  doctrine ;  and  also  that  perplexing  fiction  of 
Express  Color.  The  system  of  doctrine,  too,  has  been  ren- 
dered simple  by  abolishing  anomalies  and  incongruities,  and 
making  uniform  the  admissibility  of  evidence,  so  far  as  it 
is  dependent  on  the  forms  of  issues.  But  much  remains 
to  be  shown  of  what  has  been  done  towards  simplifying 
pleadings.  This  will  disclose  itself  more  and  more,  as  we 
proceed,  until  we  reach  the  Simplified  Forms,  when  a  com- 
parison of  them  with  the  old  Forms  will  make  the  simplifi- 
cation manifest  to  direct  inspection. 


EXILES  FOE  FEAMING  THE  PLEADINGS. 

I  will  now  consider  the  Eules  for  framing  the  respective 
pleadings  which  constitute  the  simplified  machinery  for 
administering  the  law. 

The  Demurrer  is  so  simple  in  its  form — its  office  being 
merely  to  raise  some  question  of  law — that  it  is  unnecessary 
to  say  any  thing  more  in  regard  to  it,  than  has  been  already 
said.  The  rules  and  the  form,  by  and  in  which,  it  must 
always  be  constructed  have  been  explained.  The  pleader, 
who  is  to  use  it,  is,  of  course,  supposed  to  be  familiar  with 
the  question  of  law  which  he  purposes  to  raise  by  it.  If  so, 
he  can  have  no  difficulty  in  stating  the  question  in  the  pre- 
scribed form. 

The  other  pleadings,  as  they  embody  statements  of  facts, 
are  more  difiicult  of  construction,  than  the  Demurrer ;  and 
consequently,  they  require  a  large  number  of  rules  relative 
to  the  various  combinations  of  facts  which  constitute  causes 
of  action  and  grounds  of  defence.     Because  the  rules  must 


76  RULES    OF    PLEADING. 

be  moulded  according  to  the  nature  of  the  objects  wliicli 
they  regulate ;  and  in  proportion  to  the  diversity  of  these 
objects  must  the  rules  be  numerous  and  multiform ;  and  the 
number  of  the  rules,  concurring  to  the  same  end,  only  dis- 
plays the  more  clearly  the  unity  of  the  principle  which  per- 
vades the  whole  system.  But  still,  the  rules  are  not  as 
numerous  as,  might,  at  first  thought,  be  supposed.  For  the 
logical  conditions  of  all  the  possible  combinations  which 
causes  of  action  and  grounds  of  defence  can  assume  are  com- 
paratively few,  and  can  be  stated  in  a  few  rules. 

The  grand  primary  purpose,  which  all  the  machinery  of 
special  pleading  is  designed  to  accomplish,  as  I  have  shown, 
is  to  bring  the  parties  to  an  issue  which  involves  the  merits 
of  the  cause.  All  the  rules,  therefore,  for  the  construction 
of  the  different  pleadings,  are  subordinate  to  this  primary 
purpose.  They  direct  the  pleader,  in  whatever  he  does,  in 
such  a  way  as  to  accomplish  this  primary  purpose  of  the 
whole  scheme  of  pleading.  This  must  be  kept  constantly 
in  mind  by  the  student  while  considering  the  rules  I  am 
about  to  explain. 

There  are  certain  rules  that  apply  to  all  pleadings^  from  the 
Declaration  to  the  end  of  the  series.  These,  to  prevent  repeti- 
tion, as  well  as  for  the  greater  light  of  systematic  views, 
shall  be  considered  first ;  then,  those  which  relate  exclusively 
to  the  Declaration  ;  next,  those  which  appAy  to  the  pileadings 
subsequent  to  the  Declaration.  Under  these  three  heads,  all 
the  fundamental  rules  will  be  embraced.  Other  rules,  which 
are  merely  auxiliary,  will  afterwards  be  discussed  under 
their  proper  heads.  And  finally,  the  simplified  Forms  will 
be  considered  under  the  light  which  the  whole  discussion 
will  have  shed  over  them.  This  is  the  order  in  which  the 
respective  subjects  stand  in  the  Simplifying  Act. 


RULES   OF    PLEADING.  77 


OF  PLEADINGS  IN  GENEEAL. 

We  now  enter  upon  the  consideration  of  the  Eules  for 
framing  pleadings.  The  first  thing  to  be  considered  is  the 
material  of  which  pleadings  are,  under  the  simplified  system, 
to  be  constructed,  A  great  many  matters,  which  were 
required  to  be  introduced  into  the  structure  of  the  different 
pleadings  under  the  old  system,  are  not  allowed  at  all  under 
the  new.  The  fundamental  rule,  upon  the  basis  of  which 
all  the  other  rules  repose  under  the  simplified  pleading, 
regulating  the  material  of  which  pleadings  shall  be  con- 
structed, is  embraced  in  the  fifty-second  section  of  the  Act 
of  Simplification,  in  these  words  : 

52.  "  "Whatever  facts  are  necessary  to  constitute  the 
ground  of  Action,  Defence,  or  Reply,  as  the  case  may  be, 
shall  be  stated  in  the  Pleading,  and  nothing  more ;  and  facts 
only  shall  be  stated,  and  not  arguments,  or  inferences,  or 
matter  of  law,  or  of  evidence,  or  of  which  the  Court  takes 
notice  ex  officio^ 

It  is  seen,  that  this  rule  is  both  affirmative,  showing  what 
material  shall  be  used,  and  negative,  showing  what  shall  not 
be  used.  It,  of  course,  implies  that  the  student  is  already 
acquainted  with  causes  of  action  and  grounds  of  defence ; 
and  that  he  can  distinguish  facts  from  arguments  and  infer- 
ences, and  from  matters  of  law,  and  matters  of  evidence,  and 
from  matters  of  which  the  Court  takes  notice,  ex  officio.  It 
is  not  the  province  of  Pleading  to  teach  these  distinctions ; 
for,  if  so.  Pleading  would  embrace  the  whole  system  of 
jurisprudence.  It  is  obvious,  that  it  would  be  improper  to 
state  matters  of  law ;  because  the  law  is  involved  in  the  facts, 
and  the  Court  sees  it  in  them  ex  officio.  And  that  it  would 
be  improper  to  state  mere  matter  of  evidence,  is  equqjly 
obvious ;  for,  besides  being  useless,  it  would  extend  the 
pleadings  to  the  greatest  prolixity. 


78  RULES   OF    PLEADING. 

The  latter  part  of  the  above  rule  implies,  tliat  tliere  are 
matters,  besides  those  of  law,  of  which  the  court  takes  notice 
ex  officio.  These  are :  matters  antecedently  mentioned  in  the 
record  or  pleadings ;  the  course  of  the  almanac ;  the  divi- 
sion of  the  State  into  Counties  and  Judicial  Circuits ;  the 
ordinary  measurement  of  time ;  legal  weights  and  measures ; 
and  other  matters  which  are  enumerated,  though  some  of 
them  do  not  pertain  to  Maryland  practice,  in  1  Chit.  Plead, 
pp.  196-205. 

This  section  is  but  a  reiteration  of  the  rule  of  the  old 
system  of  pleading,  without  any  new  limitation.  All  the 
exclusions  of  this  rule  were  embraced  in  it  under  the  old 
pleading.  But  there  were  many  matters  allowed  by  this 
rule,  and  required  by  others,  to  be  stated  in  pleadings,  which 
the  Act  of  Simplification  excludes  from  the  material  for 
framing  pleadings.  Some  of  these  are  embraced  in  the  fifty- 
third  section  of  the  Act,  in  these  words  : 

53.  "  All  statements  which  need  not  be  proved,  such  as 
the  statement  of  Time,  Quantity,  Quality,  and  Value,  where 
these  are  immaterial ;  the  statement  of  losing  and  finding, 
and  Bailment,  in  actions  for  goods  or  their  value;  the  state- 
ment of  acts  of  Trespass  having  been  committed  with  force 
and  arms,  and  against  the  peace,  dignity  and  government  of 
the  State  of  Maryland ;  the  statement  of  taking  in  Actions 
of  Eeplevin ;  the  statement  of  Promises  which  need  not  be 
proved,  or  promises  in  Indebitatus  counts,  and  mutual 
promises  to  perform  agreements,  and  all  statements  of  a  like 
kind,  shall  be  omitted." 

Many  of  the  statements  embraced  in  this  section  were 
fictions  which  grew  out  of  forms  of  actions,  and  were 
required  to  be  stated  in  order  to  sustain  the  form  of  action. 
For  example,  the  statement  of  losing  andfindiruj^  and  in  some 
ca^es,  of  bailment,  were  absolutely  necessary  in  Actions  of 
Detinue  and  Trover,  to  recover  goods  or  their  value ;  and 
yet  the  gist  of  the  action  of  Detinue  was  the  wrongful 


RULES   OF   PLEADING.  79 

detention,  and  of  the  action  of  Trover,  the  wrongful  con- 
version to  the  defendant's  use  of  the  plaintiff's  property, 
without  any  dependence  whatever  upon  the  mode  of  getting 
possession  of  them,  as  these  fictitious  statements  would 
imply.  So  the  statement  of  taking  in  Actions  of  Eeplevin, 
and  of  promises  in  Indebitatus  counts,  from  what  I  have 
heretofore  said  on  these  respective  subjects  at  their  proper 
places,  is  manifestly  fictitious;  and  therefore  irrelevant  in 
the  simplified  pleadings,  which  aim  at  the  exclusion  of  mere 
technical  form.  This  rule,  though  stated  under  the  general 
rules,  applies  almost  exclusively  to  the  Declaration. 

The  two  rules  or  sections,  which  I  have  considered,  are 
the  only  ones,  under  this  head,  which  relate  to  the  material 
of  which  pleadings  shall  be  constructed.  The  others,  which 
I  will  now  proceed  to  consider,  relate  to  the  framing  of 
pleadings  so  as  to  make  them  certain  in  their  meaning  and 
precise  and  simple  in  their  form. 

The  first  of  these  is  embraced  in  the  fifty-fourth  section, 
in  these  words : 

54,  "An  allegation  shall  not  have  two  intendments:  but 
it  shall  state  one  point  distinctly,  so  that  the  adverse  party 
may  know  on  what  to  join  issue.  And  if  an  allegation  shall 
have  two  intendments,  it  shall,  upon  motion,  be  considered 
by  the  Court  as  a  nullity," 

This  rule  points  at  what  is  called  a  negative  i^regnant,  and 
such  like  ambiguous  statements,  A  negative  pregnant  is  such 
a  form  of  negative  expression  as  may  imply,  or  carry  within 
it,  an  affirmative.  And  so  an  argumentative  pleading  is 
pregnant  with,  or  may  imply,  a  negative.  For  examples, 
see  Step.  Plea,  pp.  381-4.     1st  Chit.  Plead,  p.  4G1. 

By  the  old  system,  a  pleading  inconsistent  with,  or  repug- 
nant to,  itself,  was,  on  that  account,  bad  and  demurrable. 
But  if  the  second  allegation,  which  created  the  repugnancy, 
was  superfluous,  and  could  be  rejected  without  materially 
altering  tlie  sense,  it  did  not  vitiate  the  pleading.     (^Stepli. 


80  RULES   OF    PLEADING. 

Plead,  pp.  378-9.)  In  order  to  rcmed}^  the  evil  of  this  rule, 
the  Act  of  Simplification  has,  in  the  fifty-fifth  section,  estab- 
lished the  following  rule  : 

55.  "  Where  there  are  material  allegations  in  a  pleading, 
that  are  repugnant  to  each  other,  the  first  in  order  shall  be 
considered  the  proper  one,  and  all  others  inconsistent  with 
it  shall  be  rejected,  even  though  the  pleading  be  thereby 
left  without  an  allegation  of  some  material  fact." 

Under  the  old  system,  a  declaration  for  taking  and  carry- 
ing away  certain  timber  for  the  completion  of  a  house  then 
lately  built,  was  bad  for  repugnancy ;  for  the  timber  could 
not  be  for  the  building  a  house  already  built.  (1st  Salk. 
213.)  Under  the  above  section,  the  words  "then  lately 
built"  will  be  rejected,  and  the  declaration  will  be  good. 
This  change  in  the  rule  was  but  following  the  general  doc- 
trine of  construction  of  deeds.  If  two  clauses  in  a  deed  be 
repugnant,  the  first  shall  be  received,  and  the  last  rejected. 
If  one  make  a  lease  for  ten  years  at  will,  this  is  a  good  lease 
for  ten  years  certain,  and  the  latter  words  are  void  for  repug- 
nancy. (2d  Term  Eep.  p.  562.)  The  Act  of  Simplification, 
in  the  above  section,  rejects  all  the  repugnant  allegations, 
even  though  the  first  allegation,  because  of  the  omission  of 
some  material  fact,  should  be  thereby  rendered  void.  The 
rule  could  not,  practically,  be  less  thorough-going;  for  if 
the  repugnant  allegations  be  rejected  at  all,  they  must  be 
rejected  entirely,  and  not  in  part. 

As  superfluous  matter  will,  sometimes,  get  into  Plead- 
ings, through  the  ignorance  of  the  pleader,  it  is  important 
that  it  should  be  so  disposed  of,  as  to  produce  as  little 
mischief  as  possible.  The  Act  of  Simplification  has  pro- 
vided a  Rule  on  the  subject  in  the  fifty-sixth  section,  in 
these  words : 

56.  "No  superfluous  allegation,  whether  it  be  consistent 
or  inconsistent  with  the  necessary  and  material  allegations, 
nor  any  impertinent  allegation  shall  vitiate  a  Pleading." 


RULES    OF    PLEADING.  81 

It  may  sometimes  happen,  that  a  pleading,  by  design  or 
through  ignorance,  may  be  so  framed  as  to  embarrass  the 
fair  trial  of  a  cause.  It  is  therefore  important,  that  the 
Court  should  have  ample  power  over  such  a  pleading. 
From  the  earliest  times  the  Courts  have  exercised  a  control 
over  their  practice.  They  not  only  establish  a  practice  for 
themselves,  but  they  set  aside  rules  of  practice.  The  Court 
at  one  time  altered  the  rule  for  computing  interest.  (2d 
Black.  E.,  p.  696,  Rice  vs.  Shute.)  And  when  flagrant 
faults  occur  in  the  framing  of  a  pleading,  the  Courts  have, 
at  all  times,  visited  them  with  censure,  and  ordered  them  to 
be  corrected  at  the  cost  of  the  offending  party.  And  the 
mode  of  calling  the  attention  of  the  Court  to  such  evils 
in  practice  and  pleadings  as  these,  has  been,  by  motion,  and 
not  by  demurrer.  Therefore,  the  Simplifying  Act  has,  in 
all  cases  of  formal  defects  in  the  pleadings,  or  other  mal- 
practice, made  the  motion  the  proper  mode  of  calling  the 
attention  of  the  Court  to  the  matter.  One  of  the  most 
important  Rules  relative  to  the  class  of  evils  of  which  we 
are  speaking,  is  contained  in  the  fifty-seventh  section  of  the 
Act  of  Simplification,  in  these  words : 

57.  "If  any  pleading  be  so  framed  as  to  prejudice,  em- 
barrass or  delay  the  fair  trial  of  the  action,  the  opposite 
party  may  move  the  Court  to  strike  out  or  amend  such 
pleading,  and  the  Court  shall  make  such  order  respecting 
the  same,  and  also  respecting  the  costs,  as  the  Court  shall 
see  fit." 

This  Rule  gives  the  Court  the  most  ample  power,  whether 
it  possessed  the  power  before  or  not,  over  all  tricky  plead- 
ings, and  all  cases  of  mere  colorable  or  pretended  amend- 
ments. 

By  the  old  law,  if  a  party  relies  on  a  deed,  to  wliich  he  is 
a  party,  and  which  is  in  his  possession,  he  must  make  prof ert 
of  it,  that  is,  aver  that  he  brings  tlie  deed  into  Court;  and 

6 


82  KULES   OF    PLEADING. 

•while  the  deed  is  thus  in  Court,  if  the  adverse  part}^  wishes 
it,  he  might  crave  oyer  of  it;  that  is,  hear  it  read.  The 
Maryland  practice  of  profert  was  to  leave  the  deed,  or  a 
copy,  at  the  Clerk's  office,  where  the  pleading,  making  pro- 
fert, was  filed.  If  then,  the  party,  craving  oyer,  wished  to 
use  any  part  of  the  deed  in  his  plea,  he  must  set  out  the 
whole  deed,  no  matter  how  long ;  and  the  deed  then  became 
a  part  of  the  pleading  of  the  party  making  the  profert. 
No  such  practice  obtained  in  regard  to  writings  not  under 
seal.  There  is  now,  no  matter  what  there  may  have  been 
in  earlier  ages,  no  reason  why  the  two  kinds  of  writings 
should  be  placed  upon  a  different  footing.  The  practice  of 
profert  and  oyer  encumbered  the  pleadings  with  unneces- 
sary matter,  and  gave  them  a  clumsy  form ;  though  it  was 
not  usual  to  actually  insert  the  deed  in  the  pleading  until 
a  record  was  made  out.  The  Act  of  Simplification  has 
abolished  profert  and  oyer,  and  substituted  another  practice, 
by  the  fifty-eighth  and  fifty-ninth  sections,  in  these  words : 

58.  "It  shall  not  be  necessary  to  make  profert  of  any 
deed  or  other  document  mentioned  or  relied  on  in  pleading ; 
and  if  profert  shall  be  made,  it  shall  not  entitle  the  opposite 
party  to  crave  oyer  of,  or  set  out  upon  oyer  such  deed,  or 
other  document." 

59.  "A  party  pleading,  in  answer  to  any  pleading  in 
which  any  document  is  mentioned  or  referred  to,  shall  be 
at  liberty  to  set  out  the  whole,  or  such  part  thereof  as  may 
be  material,  and  the  matter  so  set  out,  shall  be  deemed  and 
taken  to  be  part  of  the  pleading  in  which  it  is  set  out." 

The  first  of  the  sections  abolishes  the  old  practice ;  and 
the  second  establishes  a  new  one.  The  new  practice  ex- 
tends to  all  documents,  whether  under  seal  or  not,  and  is 
so  simple  that  the  Rule  sufficiently  explains  itself. 

The  practice  of  profert  and  oyer  extended  to  letters  testa- 
mentary and  of  administration,  &c.     The  forms  of  making 


EULES    OF    TLEADIXG.  83 

profert  and  craving  oyer,  may  be  seen  in  Stephen  or  Chitty 
on  Pleading,  or  in  Harris'  Entries. 

Wherever  a  man  does  any  thing  by  force  of  a  vrarrant  or 
authority,  as  a  bailift"  acting  under  a  precept ;  or  does  an  act 
where  an  instrument  of  writing  is  required ;  such  precept, 
and  such  instrument  of  writing,  were  required,  by  the  old 
law,  to  be  mentioned  in  a  pleading  in  regard  to  such  acts. 
The  sixtieth  section  of  the  Simplifying  Act  has  introduced 
a  different  Rule  in  such  cases,  as  follows : 

60.  "Where  in  a  pleading,  any  thing  is  alleged  generally 
to  have  been  done,  it  shall  be  considered  as  meaning  legally 
done,  and,  by  the  proper  instrument  of  writing  where  one 
is  required,  without  stating  how  or  in  what  manner  it  was 
done." 

In  an  action  on  a  contract  where  the  Defendant's  per- 
formance is  to  depend  on  some  act  to  be  done  or  forborne 
by  the  Plaintiff,  the  Plaintiff  must  aver  the  performance  or 
fulfilment  of  such  condition  precedent,  in  order  to  show 
that  he  has  a  cause  of  action.  And  where  a  Defendant  has 
to  do  some  act  before  the  condition  precedent  is  incumbent 
on  the  Plaintiff,  in  order  to  take  advantage,  as  a  defence  for 
his  own  non-performance  of  the  condition  subsequent,  of 
the  Plaintiff's  non-performance  of  the  condition  precedent, 
he  must  allege  performance  by  himself  of  such  act.  In 
these  cases  and  the  like,  the  Plaintiff  and  the  Defendant 
were  required  by  the  old  law  to  state  "  a  certain  and  exact 
performance."  The  sixty-first  section  of  the  Simplifying  Act 
has  given  the  following  Rule  for  such  cases: 

61.  "  It  shall  be  lawful  for  the  Plaintiff  or  Defendant  in 
any  action,  to  aver  performance  of  conditions  precedent 
generally,  and  the  opposite  party  shall  not  deny  such  aver- 
ment generally,  but  shall  specily  in  liis  pleading  the  con- 
dition or  conditions  precedent,  the  performance  of  which  ho 
intends  to  contest." 


84  EULES   OF   TLEADIXG. 

By  tliis  Rule  tlic  Plaintiff  or  Dcfcnclaut  may  aver  that  he 
has  performed  all  things  on  his  part  to  be  performed;  and  this 
•will  be  sufficient  to  necessitate  the  opposite  party  to  specify, 
in  his  next  Pleading,  the  condition  or  conditions  precedent 
Avhich  he  denies  the  performance  of.  The  doctrine  of  con- 
ditional contracts,  like  the  doctrine  of  contracts  generally, 
IS  a  part  of  the  law,  and  does  not  come  within  the  scope  of 
a  treatise  on  Pleading  or  Procedure. 

In  order  to  prevent  the  retardation  of  the  issue,  it  is 
manifestly  necessary,  that  both  the  Plaintiff  and  Defendant 
shall  be  confined  to  the  grounds  they  at  first  take  in  the 
action.  While  the  parties  are  respectively  confined  to  the 
grounds  they  first  take  in  their  Declaration  and  Plea,  the 
process  of  pleading  must  exhaust,  after  a  few  alternations, 
all  the  facts  involved  in  the  cause ;  and  thereby  evolve  the 
question  in  dispute.  But  if  a  new  ground  be  taken  in  any 
part  of  the  series,  the  result  is  necessarily  postponed.  And 
if  one  departure,  as  it  is  called,  be  allowed,  why  not  more  ? 
The  Simplifying  Act  has  therefore  preserved  the  Rule 
against  departure  in  pleading,  as  it  was  called  in  the  old 
system.  It  is  embraced  in  the  sixty-second  section  as 
follows : 

62.  "  Parties  shall  be  respectively  confined  to  the  grounds 
both  of  fact  and  of  law  which  they  take  in  the  Declaration 
and  the  Plea,  and  shall  not  resort  to  another  in  any  subse- 
quent pleading." 

A  departure  obviously  cannot  take  place  earlier  than  the 
replication ;  but  it  has  most  frequently  occurred  in  the 
rejoinder.  The  Rule  implies  that  there  may  be  a  departure 
either  in  law  or  fact.  A  departure  in  law,  is  where  a  party 
puts  the  same  facts  on  a  new  ground  in  point  of  law ;  as  if 
he  relies  on  the  effect  of  the  Common  Law,  in  his  Declara- 
tion, and  on  a  custom,  in  his  Replication ;  or  on  the  effect 
of  the  Common  Law  in  his   Plea,  and  a  Statute  in  his 


RULES    OF    PLEADING.  85 

rejoinder.  An  example  of  a  departure  in  fact,  is  where  tlie 
Plaintiffs,  as  executors,  declared  on  several  promises  alleged 
to  liave  been  made  to  the  testator.  The  Defendant  pleaded, 
that  she  did  not  promise  within  six  years  before  the  bring- 
ing of  the  action.  The  Plaintiffs  replied,  that  within  six 
years  before  the  action,  letters  testamentary  were  granted 
to  them;  whereby  the  action  accrued  to  them^  within  six 
years.  In  the  Declaration  the  Plaintiffs  lay  the  promises 
to  the  testator ;  and  in  the  Pteplication  allege  the  right  of 
action  to  accrue  to  themselves  as  executors.  They  should 
have  laid  the  promises  to  themselves  in  the  Declaration  as 
executors,  if  they  meant  to  rely  upon  that  ground.  (Steph. 
Plead,  pp.  405-11.) 

It  is  not  necessary,  in  pleading,  for  a  party  to  state  matter 
which  would  come  more  properly  from  the  other  side.  This 
principle  the  Act  of  Simplification  has  set  forth  in  the  sixty- 
third  section  in  these  words  : 

63.  "A  pleading  should  not  anticipate  the  answer  of  the 
opposite  party.  It  is  sufficient  that  each  pleading  contain 
facts  which  constitute  a  good  prima  facie  claim  or  defence 
or  reply,  without  reference  to  possible  objections  not  yet 
urged.  But  where  the  matter  is  such,  that  its  affirmation 
or  denial  is  essential  to  the  apparent  or  prima  facie  right  of 
the  party  pleading,  there  it  ought  to  be  affirmed  or  denied 
in  the  first  instance,  though  it  may  be  such  as  would  other- 
wise properly  form  the  subject  of  objection  on  the  other 
side." 

This  rule  divides  itself  into  two  parts.  The  first  part 
is  exemplified  thus:  In  a  declaration  of  debt  on  a  bond,  it 
Is  unnecessary  to  allege  that  the  Defendant  was  of  full  age 
when  he  executed  it ;  for  though  a  person  under  age  can 
not  execute  a  bond,  yet  it  is  for  the  other  party  to  show 
this  by  the  plea  of  infancy,  and  it  need  not  be  denied  by 
anticipation.     So,  where  there  was  a  covenant  in  a  charter- 


8G  nULES   OF    PLEADING. 

party,  "  tliat  no  claim  should  be  admitted  or  allowance  made 
foi-  short  tonnage,  unless  such  short  tonnage  "vvere  found 
and  made  to  appear  on  the  ship's  arrival,  on  a  survey  to  he 
taken  by  four  shipwrights,  to  be  indifferently  chosen  by 
both  parties,"  and  in  an  action  of  covenant  brought  to 
recover  for  short  tonnage,  the  plaintiff  had  a  verdict.  The 
Defendant  moved  in  arrest  of  judgment,  that  it  had  not  been 
averred  in  the  Declaration,  that  a  survey  was  taken,  and 
short  tonnage  made  to  appear.  But  the  Court  held,  tliat  if 
such  tonnage  had  not  been  taken,  this  was  matter  of  defence, 
which  ought  to  have  been  shown  b}'-  the  Defendants ;  and 
refused  to  arrest  the  judgment,  (1  T.  E.  638.) 

The  second  half  of  the  rule,  which  is  a  qualification  of 
the  first  half,  is  exemplified  by  the  following  case :  In  an 
action  brought  by  a  commoner  against  a  stranger,  for 
putting  his  cattle  on  the  common,  because  he  could  not  enjoy 
the  common  in  so  ample  a  manner  as  he  ov.ght,  the  Defendant 
pleaded  a  license  from  the  lord,  to  put  his  cattle  there,  but 
did  not  aver  that  there  was  sufficient  common  left  for  the 
commoners.  This  was  held,  on  Demurrer,  to  be  no  good 
plea ;  for  though  it  may  be  objected,  that  the  Plaintiff  may 
reply  that  there  was  not  enough  common  left,  yet,  as  he  had 
already  alleged  in  his  Declaration,  that  his  enjoyment  of  the 
common  was  obstructed,  the  contrary  of  this  ought  to  have 
been  alleged  in  the  plea.  (2  Mod.  6.  See  Steph,  Plead. 
pp.  354-7.) 

As  the  great  purpose  of  simplification  was  to  abolish  all 
useless  forms,  and  to  so  frame  the  machinery  of  pleading  as 
to  make  substance,  or  the  merits  of  the  case,  the  sole  matter 
of  dispute  in  litigation,  the  Act  of  Simplification,  besides 
provisions  which  expressly  abolish  useless  forms  specifically 
mentioned,  has  a  general  provision,  which,  out  of  abundant 
caution,  declares  that  form  shall  in  no  instance  control  sub- 
stance. This  rule  is  contained  in  the  sixty-fourth  section 
in  these  words: 


RULES   OF    PLEADING.  87 

64.  "The  Form  of  a  Pleading  sliall  in  no  case  whatever 
control  its  substance.  Matter,  though  alleged  in  the  form 
of  inducement,  if  it  be  of  the  substance  of  the  cause,  may  be 
pleaded  to.     And  so,  in  all  like  instances." 

It  is  hard  to  anticipate,  by  example,  the  possible  applica- 
tion of  this  rule ;  for  the  rule  itself  contains  the  only  ex- 
ample tha{  I  can  think  of,  that  of  inducement.  Inducement 
is  the  technical  name  for  introductory  or  explanatory  matter, 
and.  was,  in  the  old  pleading,  stated  in  the  form  of  introduc- 
tory allegation.  And  the  rule,  above,  means  that  if  matter 
of  substance  should  be  stated,  as  though  it  was  merely  intro- 
ductory, it  shall  not  thereby  lose  its  substantial  import. 
The  rule  as  embodied  in  the  case  of  inducement,'  was  the 
rule  of  the  old  pleading.  (Steph.  Plead.  258.) 

It  was  a  rule  under  the  old  system  of  pleading,  that  a 
"party  fnigUt  traverse  a  material  allegation  of  title  or  estate  to  the 
extent  to  ivhich  it  was  alleged^  though  it  need  not  have  been 
alleged  to  that  extent^  and  that  the  title  or  estate  must  he  proved 
to  the  extent  alleged.  In  an  action  of  replevin,  for  example, 
the  defendant  avowed  the  taking  of  the  cattle,  as  damage 
feasant,  in  the  place  in  which,  &c. ;  the  same  being  the  free- 
hold of  Sir  F.  L.  To  this  the  Plaintiff  pleaded,  that  he  loas 
seised  in  his  demesne,  as  of  fee ^  of  B.  close,  adjoining  to  the 
place  in  which,  &c.;  that  Sir  F.  L.  was  bound  to  repair  the 
fence  between  B.  close,  and  the  place  in  which,  &c.;  and 
that  the  cattle  escaped,  through  a  defect  of  that  fence.  The 
defendant  traversed,  that  the  Plaintiff  was  seised  in  his  de- 
mesne as  offee^  of  B.  close ;  and  on  demurrer,  the  Court  was 
of  opinion,  that  it  was  a  good  traverse ;  for  though  a  less 
estate  than  a  seisin  in  fee  would  have  been  sufficient  to  sus- 
tain the  Plaintiff"'s  case,  yet  as  the  Plaintiff'  who  should  best 
know  what  estate  he  had,  had  pleaded  a  seisin  in  fee,  his 
adversary  was  entitled  to  traverse  the  title  so  laid.  So  in  an 
action  for  trespasses  committed  in  a  close  of  pasture,  contain- 
ing eight  acres,  in  the  town  of  Tolland  Eoyal,  the  Defend- 


88  RULES    OF    PLEADING. 

ant  pleaded,  tluit  W.  Earl  of  Salisbury,  was  seised  in  fee, 
and  of  right,  of  an  ancient  chase  of  deer,  called  Cranborn, 
and  that  the  said  chase  did  extend  itself,  as  well  in  and 
through  the  said  eight  acres  of  pasture,  as  in  and  thi'ough 
the  said  town  of  Tolland  Koyal :  and  justified  the  trespasses, 
as  committed  in  using  the  said  chase.  The  Plaintiff  tra- 
versed, that  the  said  chase  extended  itself  as  well  to  the  eight 
acres,  as  to  the  ichole  town;  and  issue  being  joined  on  this 
plea,  it  was  found  for  the  plaintiif.  It  was  objected,  that 
the  issue  and  verdict  were  faulty,  and  ought  not  to  preclude 
the  Defendant;  because  if  the  chase  extended  to  the  eight 
acres  only  it  was  enough  for  the  Defendant ;  and  therefore 
that  the  fact  that  it  did  not  extend  as  well  to  the  whole 
town  as  to  the  eight  acres  did  not  conclude  against  the  De- 
fendant's right  in  the  eight  acres  which  was  only  in  ques- 
tion. But  as  the  Defendant  had  put  more  in  his  plea  than 
was  needed,  it  was  his  fault,  and  must  prove  it  as  alleged. 
In  order  to  obviate  the  evil  of  such  cases  as  these,  where 
upon  the  face  of  the  pleadings  and  the  proofs  at  the  trial,  it 
was  manifest  that  the  losing  party  had  a  just  case,  the  Sim- 
plifying Act,  in  the  sixty-lifth  section,  gives  this  rule : 

65.  "  If  the  Plaintiff  allege  a  greater  title  or  estate  than 
is  necessary  to  sustain  his  cause  of  action,  and  it  be  tra- 
versed to  the  full  extent,  he  shall  not  be  compelled  to  prove 
more  than  is  necessary  to  sustain  his  action.  And  if  a  De- 
fendant puts  into  his  plea  more  than  is  needed  for  his 
defence,  he  shall  not  be  compelled  to  prove  more  than  is 
needed  for  his  defence." 

The  next  rule  in  the  Act  of  Simplification  is  contained  in 
the  sixty-sixth  section,  in  these  words  : 

QQ.  "  AVhen  a  pleading  can  be  taken  two  ways,  it  shall  be 
taken  in  that  which  is  most  against'  the  party  pleading  it." 

This  is  a  mere  precautionarj^  rule,  that  will  hardly  ever 


RULES   OF    PLEADING.  89 

be  applicable  to  a  pleading  under  the  simplified  system. 
Its  import  is  so  obvious  as  to  need  no  comment. 

As  every  pleading  ouglit  to  be  authenticated  as  the  act 
of  the  party  pleading,  the  Act  of  Simplification,  by  the 
sixty-seventh  section,  makes  it  necessary  that  the  party,  or 
his  Attorney,  shall  sign  it.  This  is  the  best  possible  mode 
of  authenticating  the  pleading.  Without  such  signature, 
therefore,  there  can  be  no  pleading.  Any  writing,  though 
purporting  to  be  a  pleading,  would  be  a  nullity  without  such 
signature.     The  section  of  the  Act  is  in  these  words : 

67.  "  Every  pleading  shall  be  in  writing,  and  signed  either 
by  the  party  or  his  Attorney." 

The  sixty-eighth  section  of  the  Act  of  Simplification 
requires  every  pleading  to  have,  at  the  commencement,  a 
superscription  of  the  Court  in  which  it  is  filed.     It  may  be 

in  this  form  :  "  In  the  Circuit  Court  for County ;"  or  as 

the  case  may  be.  If,  however,  the  title  of  the  Court  be 
omitted,  the  pleading  would  not  thereby  be  a  nullity.  The 
Court  could  direct  the  clerk  to  superscribe  the  title  of  the 
Court;  it  being  a  mere  formal  defect,  and  not  demurrable. 
The  section  is  in  these  words : 

68.  "  Every  Declaration  and  other  Pleading  shall  be  enti- 
tled of  the  proper  Court." 

As  it  would  have  led  to  prolixity,  to  have  specified  in 
every  rule  every  pleading  to  which  it  was  intended  to  apply, 
and  as  the  omission  of  any  one  would  have  been  a  defect, 
the  Act  of  Simplification  has  obviated  the  evil,  by  a  rule 
contained  in  the  sixty-ninth  section,  in  these  words : 

60.  "  Whenever  any  rub  of  pleading,  contained  in  this 
code,  shall  specify  in  terms  only  one  or  more  species,  as 
Declaration,  Plea,  or  any  other,  yet  if  in  its  nature  and  scope 


90  RULES    OF    PLEADING. 

the  rule  be  applicable  to  otlier  pleadings  also,  it  sliall  be 
taken  to  apply  to  all  to  which  it  is  applicable." 

I  have  now  concluded  the  examination  of  the  rules  wliich 
apply  to  all  pleadings.  I  will  next  consider  the  rules  which 
apply  to  the  Declaration. 


OF  THE  DECLARATION. 

The  Declaration  is  the  first  step  in  pleading,  and  the 
chronological  order  would  have  required  me  to  consider  it 
first.  But  it  was  found  important  to  postpone  its  considera- 
tion until  this  stage  of  our  exposition ;  and  to  place  its  spe- 
cial rules  after  those  which  apply  to  all  pleadings,  in  order 
to  prevent  repetition.  These  considerations  determined  the 
same  order  in  the  Simplifying  Act,  which  I  follow  through- 
out in  this  treatise. 

The  rules  which  we  have  just  considered  bear  so  fully 
upon  the  declaration,  that  there  are  but  few  rules  which 
relate  to  it  exclusively.  The  statements  of  causes  of  action 
necessarily  vary  according  to  the  facts  of  each  case.  I  have 
already,  in  considering  the  fifty-second  section  of  the  Act  of 
Simplification,  pointed  out  what  is  the  proper  material  for 
framing  a  declaration,  as  well  as  other  pleadings.  The  rules 
which  I  am  now  about  to  consider  can  have  no  application 
to  any  pleading  but  the  declaration. 

The  pleader  is,  of  course,  assumed  to  be  familiar  with 
causes  of  action,  or,  in  other  words,  with  claims  that  can  be 
sustained  by  an  action  at  law.  For  pleading  does  not  teach 
the  doctrine  of  rights,  or  even  of  remedies ;  but  only  the 
mode  of  stating  claims  or  injuries,  according  to  forensic 
usage,  for  their  consideration  and  determination  by  the  Court 
and  the  jury.  The  doctrines  of  rights  and  injuries  are,  of 
course,  not  affected  by  the  Act  of  Simplification :  but  that 
of  remedies  is  greatly  simplified,  as  I  have  shown  in  the 
first  chapter  of  this  treatise.     And  it  has  been  through  the 


RULES   OF    PLEADING.  91 

Simplification  of  Remedies  that  the  Simplification  of  Plead- 
ing has  been  effected.  Under  the  old  system,  the  statement  of  a 
cause  of  action  liad  to  be  varied,  not  only  according  to  the 
circumstances  of  each  case,  but  according  to  the  form  of 
action,  whether  in  Assumpsit,  Debt,  Covenant,  Detinue,  Case, 
Trover,  Replevin,  or  Trespass,  which  involved  the  nature  and 
special  applicability  of  all  those  remedies  or  forms  of  actions. 
But  now,  remedies  are  narrowed  down  to  Summons,  Reple- 
vin and  Ejectment ;  and  even  in  these,  substance  is  every- 
thing and  form  nothing ;  so  that,  in  pleading  now,  the  cause 
of  action  alone  is  to  be  considered,  in  framing  the  statement 
of  the  declaration. 

The  first  rule  relative  to  the  declaration  is  contained  in 
the  seventieth  section  of  the  Act  of  Simplification,  in  these 
words : 

70.  "  A  Plaintiff  shall  recover  only  in  respect  of  the 
ground  of  action  stated  in  his  declaration,  and  not  in  respect 
of  another  disclosed  by  the  Defendant's  plea." 

This  has  always  been  the  law;  at  all  events,  ever  since 
pleading  became  systematic.  This  rule  may  perhaps  seem 
to  conflict  with  the  forty-second  section  of  the  Act  of  Sim- 
plification, relative  to  the  effect  of  pleading  over  without 
demurring.  But  it  does  not.  That  section  applies  merely 
tp  the  curing  of  a  defect  in  the  declaration,  by  the  Defend- 
ant's plea;  whereas  this  applies  where  the  Plaintiff  has 
wholly  failed  in  stating  his  cause  of  action,  but  one  is  dis- 
closed by  the  Defendant's  plea,  as  has  sometimes  happened 
in  the  experience  of  Courts.  The  rule,  too,  may  seem  to  be 
little  more  than  the  repetition  of  the  sixty-second  section  of 
the  Act  of  Simplification,  as  far  as  that  rule  bears  on  the 
declaration.  But  it  will  be  remembered,  that  that  section 
prevents  the  Plaintiff  from  shifting  his  cause  of  action  from 
one  of  his  own  pleadings  to  anotlicr — from  the  declaration 
to  the  rej)lication — that  is,  taking  a  different  ground  in  tho 
latter  from  that  taken  in  the  first ;  whereas,  this  rule  pre- 


92  KULES   OF    PLEADING. 

vents  liim  from  shifting  liis  ground  of  action  from  liis  own 
pleading  to  that  of  the  Defendant. 

I  have  all  along  kept  it  prominently  in  view,  that  the 
great  purpose  of  the  simplified  pleadings  is  to  make  the 
parties  disclose  their  respective  cases  as  soon  as  possible.  In 
furtherance  of  this  purpose,  and  to  make  the  Plaintiff  dis- 
close the  real  character  of  his  case  at  once,  so  that  an  issue 
can  be  speedily  formed  upon  the  merits,  the  seventy-first 
section  of  the  Act  of  Simplification  prescribes  the  following 
rule : 

71.  "  AYhenever  a  Plaintiff  claims  a  right  derogator}^  from 
the  general  law,  or  when  his  claim  is  founded  upon  an 
exception  of  any  kind,  he  shall  set  forth  such  claim  or  such 
exception  particularly  in  his  declaration." 

Cases,  to  which  this  rule  points,  do  not  often  occur :  but 
when  they  have  occurred,  they  have  been  attended  with 
embarrassment,  from  the  Plaintifi:''s  stating  his  case  in  a 
general  way,  instead  of  specif3dng  it  as  an  exception.  For 
example :  The  Plaintiff  brought  an  action  of  trespass  for 
fishing  in  his  fishery.  The  Defendant  pleaded  that  the  place 
is  an  arm  of  the  sea,  in  which  every  subject  has  a  right  to  fish. 

The  Plaintiff  in  his  replication,  for  the  first  time,  dis- 
closed his  claim  as  an  exclusive  prescriptive  right.  The 
rule  under  consideration  is  designed  to  compel  a  Plaintiff,  iu 
such  a  case,  and  all  like  it,  to  disclose  the  precise  cause  of 
action,  as  being  exceptional,  in  his  declaration,  and  not  de- 
lay to  do  so  till  the  replication. 

Where  the  cause  of  action,  is  founded  on  a  contract  of 
any  kind  whatever,  it  must  consist  in  a  breach  of  that  con- 
tract. Therefore,  in  all  actions  on  bonds  with  conditions, 
the  breach  of  the  condition  must  be  stated  in  the  pleadings. 
The  usual  practice,  under  the  old  system  of  pleading,  was 
to  declare  on  the  bond  as  though  it  were  single,  that  is, 
without  conditions ;  and  for  the  Defendant  to  plead  general 


RULES   OF   PLEADING.  93 

performance;  and  then  for  the  Plaintiff  in  his  replication  to 
assign  the  breaches  of  the  conditions,  or,  in  other  words,  to 
state  his  real  cause  of  action.  By  this  mode  of  pleading  the 
declaration  was  useless,  and  the  replication  took  its  place. 
In  order  to  prevent  this  prolonged  and  vexatious  pleading, 
the  seventy-second  section  of  the  Simplifying  Act  establishes 
the  following  rule : 

72.  "  In  all  actions  on  bonds  with  conditions,  the  Plain- 
tiff shall  in  the  declaration  notice  the  conditions,  and  allege 
the  breach  or  breaches  relied  on." 

As  this  rule  merely  shifts  the  statement  of  the  breaches 
from  the  replication  to  the  declaration,  the  mode  of  stating 
the  breaches  remains  as  under  the  old  system,  except  as  far 
as  the  form  of  these  statements  may  be  affected  by  the  dif- 
ferent sections  of  the  Act  of  Simplification  abolishing  the 
formal  })arts  of  declarations  in  all  cases.  Therefore,  as  the 
statement  of  breaches  is  a  difficult  part  of  pleading,  I  pro- 
pose to  state  the  general  docti-ine  upon  the  subject,  while, 
at  the  same  time,  I  will  illustrate  the  rule  under  considera- 
tion. 

No  one  possible  form  of  statement  will  suit  every  breach ; 
for  each  breach  must  depend  on  the  particular  stipulation 
broken,  and  these  are  as  various  as  the  transactions  em- 
braced in  the  agreements  amongst  men.  Breaches  must 
therefore  be  stated  according  to  the  special  facts  of  each 
case  which  constitute  the  violation  of  that  special  contract. 
And  as  there  are  many  different  forms  of  contract,  so  there 
must  be  many  different  forms  of  breaches.  In  order  there- 
fore to  explain  the  different  forms  of  breaches,  it  becomes 
necessary  to  advert  to  the  different  forms  of  contracts.  ''I'he 
forms  of  contract,  of  which  I  now  speak,  are  not  those  tech- 
nical forms — of  contracts  under  seal,  and  contracts  not  under 
seal.  But  the  forms  of  which  I  now  speak  constitute  the 
substance  of  the  contracts,  making  them  differ  from  each 
other  as  the  different  wants  and  wishes  of  the  contracting 


94  RULES   OF    r LEADING. 

parties  dilYer  from  each  other.  Sometimes  the  contract  is 
simply  a  promise,  upon  a  consideration  already  enjoyed  by 
the  person  promising,  to  pay  to  the  person  from  whom  the 
consideration  passed,  a  certain  sum  of  money.  Or  the  con- 
tract may  consist  of  stipulations  dependent  on  each  other ; 
where  the  obligation  to  perform  the  one  may  depend  on  the 
prior  performance  of  the  other.  Or,  the  contract  may  con- 
sist of  mutual  stipulations  to  be  performed  at  the  same  time. 
Now,  it  is  manifest,  that  statements  of  the  breaches  of  these 
different  contracts  must,  of  necessity,  differ  in  form  as  well 
as  substance,  from  each  other.  In  the  first  example,  the 
breach  would  be  sufficiently  stated,  by  simply  avering,  that 
the  money  promised  to  he  pcdd^  had  not  been  paid.'  But  in  the 
second  example,  as  the  obligation  to  perform  the  thing  sti- 
pulated, depends  on  the  prior  performance  of  something  on 
the  part  of  the  Plaintiff",  he  must  aver  his  prior  performance 
and  then  allege  the  non-performance  hy  the  Defendant^  to  show 
a  breach.  And  in  the  third  example,  the  party  suing  must 
allege  that  he  ivas  ready  and  ivilling  to  perform  his  ^^a?*^,  and 
that  the  Defendant  neglected  or  refused  to  perforin  liis  part. 

The  pleader  therefore,  before  assigning  the  breaches,  must 
understand  the  nature  of  the  contract,  and  determine  what 
facts  are  necessary  to  constitute  a  breach  of  it  on  the  part  of 
the  Defendant.  The  class  of  contracts  which  oppose  the 
greatest  difficulty  are  those  like  the  second  example  given 
above,  called  Dependent  Covenants.  Whether  the  Cove- 
nants are  dependent  or  independent,  is  to  be  collected  from 
the  evident  sense  and  meaning  of  the  parties;  and  however 
transposed  the  covenants  may  be  in  the  deed,  their  prece- 
dency must  depend  on  the  order  of  time  in  which  the  intent 
of  the  transaction  requires  their  performance.  And  there 
are  no  precise  technical  words  to  make  a  Stipulation  a  con- 
dition precedent  or  subsequent :  but  in  all  cases  the  real  im- 
port of  the  words  must  alone  be  considered  in  the  special 
case. 

In  point  of  form,  an  averment  of  a  breach  may  be  in  any 
words  amounting  to  an  express  allegation.     The  statement 


RULES   OF    PLEADING.  95 

must  be  positive,  and  not  by  way  of  recital,  or  inference. 
The  breacb  should  be  assigned  in  the  words  of  the  contract 
either  negatively  or  affirmatively  as  the  case  may  require, 
or  in  words  that  are  co-extensive  with  the  import  and 
effect  of  the  contract.  And  if  the  contract  be  in  the  dis- 
junctive^ the  breach  ought  to  be  assigned,  that  the  Defendant 
did  not  do  either  act ;  as  on  a  promise  to  deliver  a  horse  by 
a  particular  day,  or  pay  a  sum  of  money.  And  no  inconve- 
nience can  result  from  laying  the  breach  as  extensively  as 
the  contract ;  for  the  Plaintiff"  can  recover,  though  he  only 
prove  part  of  the  breach  laid.  What  the  degree  of  particu- 
larity must  be  in  each  case  can  be  determined  by  no  rule. 
Less  particularity  is,  however,  required  where  the  breach 
lies  more  in  the  Defendant's  than  the  Plaintiff's  knowledge. 
At  the  Common  Law,  in  an  action  on  a  bond  with  a  con- 
dition for  the  performance  of  any  thing,  the  Plaintiff"  could 
assign  only  one  breach  of  the  condition ;  because  the  bond 
was  forfeited  by  the  breach  of  one  covenant  as  much  as  of 
several  covenants ;  and  the  assignment  of  more  than  one 
breach  would  make  the  declaration  bad  for  duplicity.*  The 
Plaintiff  therefore,  because  of  one  breach,  had  judgment  to 
recover  the  penalty  of  the  bond  together  with  his  costs ;  and 
was  entitled  to  take  out  execution  for  the  whole  without  any 
regard  to  the  damage  which  he  had  actually  sustained  by 
the  breach  of  covenant.  The  Defendant  was  therefore  con- 
strained to  go  into  equity  to  obtain  relief  against  an  uncon- 
scientious demand  of  the  whole  penalty  in  cases  where  small 
damages  only  had  accrued.  In  order  therefore  to  protect 
Defendants  against  such  unconscientious  judgments,  the 
Statute  8  &;  9  W.  3,  c.  11,  s.  8,  enacted  that — *'  In  all  actions 
in  any  court  of  record  upon  any  bond,  or  on  any  penal  sum, 
for  non-performance  of  any  covenants  or  agreements  con- 
tained in  any  indenture,  deed  or  writing,  the  Plaintiff'  may 
assign  as  many  breaches  as  he  shall  think  fit,"  &c.  This 
statute  gives  Plaintiff's  relief  up  to  the  extent  of  the  damages 

*  Duplicity  will  Ijc  coiisidLTcd  hereafter. 


96  RULES   OF    PLEADINCx. 

sustained,  and  protects  Defendants  against  tlie  payment  of 
further  sums  than  are  in  conscience  due.  The  Plaintiff 
must  therefore  (the  word  may  in  the  statute  is  interpreted 
must  by  the  Courts,)  assign  all  the  breaches  of  the  bond  on 
which  he  means  to  rely  ;  and  if  the  Defendant  plead  to  issue, 
the  jury  upon  the  trial  must  assess  damages  for  such  of  the 
breaches  assigned  as  the  Plaintiff  shall  prove  to  have  been 
broken.  Bonds  may  be  conditioned  either  for  the  perform- 
ance of  certain  matters  set  forth  in  the  condition,  or  of  the 
covenants  or  other  matters  contained  in  an  indenture  or 
other  instrument,  collateral  to  the  bond,  and  not  set  forth  in 
the  condition.  The  mode  of  pleading  is  the  same  in  both 
cases ;  and  the  rule  under  consideration  is  ai^plicablc  to 
both. 

Injuries  that  are  not  breaches  of  contract  constitute 
another  great  class  of  causes  of  action.  They  are  injuries 
to  the  person  ;  or  to  character ;  or  to  property.  They  are 
called  lorongs. 

Injuries  to  the  person  are  so  simple  in  their  nature,  and 
are  so  easily  stated  in  the  declaration,  that  I  shall  give  no 
special  direction  in  regard  to  them:  but  merely  refer  the 
student,  to  the  Forms  for  such  declarations  in  the  third 
chapter  of  this  treatise. 

The  declaration,  in  cases  of  injury  to  character,  was  so 
artificial  under  the  old  system  of  pleading,  that  the  Act  of 
Simplification  has  established  the  following  .  rule,  in  the 
seventy-third  section : 

73.  "In  all  actions  of  Libel  or  Slander,  the  Plaintiff  shall 
be  at  liberty  to  aver  that  the  words  or  matter  complained  of 
were  used  in  a  defamatory  sense,  specifying  such  defamatory 
sense,  without  any  prefatory  averment,  to  show  how  such 
words  or  matter  were  used  in  that  sense,  and  such  averment 
shall  be  put  in  issue  by  the  denial  of  the  alleged  Libel  or 
Slander ;  and  when  the  words,  or  matter  set  forth,  with  or 
without  the  alleged  meaning,  show  a  cause  of  action,  the 
Declaration  shall  be  sufficient." 


RULES    OF    PLEADING.  97 

Where  the  words  used  are  not  actionable  in  themselves 
but  derive  their  slanderous  or  libellous  meaning  from  ex- 
trinsic facts,  it  was  necessary,  under  the  old  system  of 
pleading,  to  state  these  extrinsic  facts  in  an  introductory 
part  of  the  declaration.  The  mode  of  doing  this  was,  first, 
to  state  the  facts  in  reference  to  which  the  words  were  spoken 
or  written  ;  secondly,  to  show  that  the  words  were  published 
of  and  concerning  such  facts ;  thirdly,  to  connect  the  words 
with  such  previous  facts.  This  was  effected  by  technical 
forms,  called  colloquiums  and  innuendoes.  The  section,  of  the 
Act  under  consideration,  makes  it  sufiicient  to  state  in  what 
defamatory  sense  the  words  were  used ;  and,  if  it  be  proved 
to  the  satisfaction  of  the  jury  that  the  words  were  used  in 
that  particular  defamatory  sense,  the  plaintiff  shall  have 
verdict,  and  judgment.  The  student  is  referred  to  the  49 
page  of  Stephen  on  Pleading  for  an  old  form  of  declaration 
in  Libel,  which  will  exemplify  to  him,  when  contrasted  with 
the  simplified  form  in  our  third  chapter,  the  burdensome 
technicalities  of  the  old  form. 

The  mode  of  stating  injuries  to  property  will  be  considered 
hereafter,  under  the  sections  of  the  Act  of  Simplification 
specially  applicable  to  such  injuries. 


OF    COMMENCEMENTS    AND    CONCLUSIONS    OF 
DECLAEATIONS. 

It  was  a  rule,  under  the  old  practice,  that  every  pleading 
must  have  its  proper  comment  and  conclusion.  The  Decla- 
ration commenced  with  a  venue^  that  is,  the  name  of  a  County 
and  the  words,  "to  wit."  The  object  of  the  venue  was 
originally,  that  the  cause  might  be  referred,  in  Courts  whose 
jurisdiction  extended  over  several  Counties,  to  the  jury  of 
the  proper  County.  *  It  has  no  such  use  now  in  Maryland. 
After  the  venue  followed  a  recital  of  the  oi-iginal  wi'it.  If 
the  riaintiff  was  a  man,  he  was  called  a  yeoman,  and  if  a 
single  woman,  she  was  called  a  spinster  or  widow.     And  if 

7 


98  RULES   OF   TLEADING. 

the  action  was  trespass,  tlie  words,  "with  force  and  arms," 
and  "against  the  peace,  government  and  dignity  of  the 
State  of  Maryland"  were  recited.  And  in  all  actions,  there 
were  equally  artificial  commencements  to  the  declarations. 

The  conclusions,  too,  to  declarations  were  very  artificial. 
The  student  can  sec  the  old  forms  of  Commencements  and  Con- 
clusions to  declarations  in  the  1  Yol.  Evans  Harris'  Entries. 

The  seventy -fourth  section  of  the  Act  of  Simplification 
has  established  a  very  simple  form  of  Commencement  and 
Conclusion  for  declarations.     The  section  is  as  follows : 

"7-i.  Every  Declaration  shall  commence  as  follows,  or 
to  the  like  effect: 

" County  {or  City)  A.  B.  by  S.  T.  his  Attorney  {or 

in  Person  as  the  case  may  be,)  sues  C.  D.  for,  {here  insert  the 
cause  of  action:)-^'' 

And  shall  conclude  as  follows,  or  to  the  like  effect : 

"And  the  Plaintiff  claims  $ "(or  if  the  action   is 

hronght  to  recover  specific  goods,)  "  the  Plaintifi"  claims  a  return 
of  said  goods  or  their  value,  and  $ for  their  detention." 

Under  the  old  system  of  pleading,  the  declaration  in  all 
personal  actions,  alleged  a  damage  of  the  Plaintiff',  and  spe- 
cified the  amount  of  the  damage.  If  the  action  was  brought 
for  the  specific  recovery  of  a  liquidated  or  certain  sum  of 
money  or  of  a  chattel,  damages  were  claimed  only  for  the 
detention  of  such  debt  or  chattel ;  and  the  damages,  not  being 
the  main  object  of  the  action,  were  laid  in  a  small  sum. 
But  where  the  damages,  as  was  the  case  in  all  personal  ac- 
tions besides  those  just  mentioned,  were  the  main  object  of 
the  action,  they  were  laid  liigh  enough  to  cover  the  whole 
demand. 

As,  by  the  Act  of  Simplification,  the  formal  distinction 
between  debt  and  damages,  in  all  actions  where  the  Plaintiff 
recovers  a  sum  of  money,  has  been,  as  we  shall  see,  abolished, 
and  the  judgment  is  rendered  without  any  such  distinction, 


RULES   OF    PLEADING.  99 

the  conclusion  of  the  declaration  is  the  same  in  all  cases 
where  the  Plaintiff  seeks  to  recover  money  whether  liqui- 
dated or  unliquidated.  The  Plaintiffj  in  the  conclusion  of 
his  declaration  in  such  cases,  claims  a  certain  sum  in  dollars, 
laro'e  enoug;h  to  cover  his  Avhole  demand  or  demands.  As 
it  would  be  impossible  in  many  cases,  especially  where  sev- 
eral causes  of  action  are  joined  in  the  suit,  for  the  plaintiff 
to  foreknow  what  amount  would  be  allowed  to  him,  it  would 
be  necessary  in  such  cases  to  claim  a  sum  different  from  the 
one  that  might  be  recovered ;  and  as  the  Plaintiff  cannot 
recover  more  than  he  claims,  it  is  best,  in  all  cases  for  the 
recovery  of  money,  to  claim  a  round  sum  in  dollars,  large 
enough  to  cover  the  real  demand  or  demands,  and  take 
judgment  for  the  real  amount  allowed. 

In  replevin  for  the  specific  recovery  of  a  chattel,  the 
damage  being  only  for  the  detention  of  the  chattel,  and  not 
for  its  value,  will,  of  course,  be  graduated  in  amount  ac- 
cordingly. 

Any  causes  of  action,  numbered  as  hereinafter  required, 
stated  between  the  commencement  and  conclusion  given 
above,  will  be  a  good  declaration  under  the  Act  of  Simpli- 
fication. And  the  mere  numbering  of  the  separate  causes 
of  action  designates  each  as  a  different  count,  without  any  of 
the  formal  statement,  required  by  the  old  system  of  its  being 
a  separate  count,  and  without  the  corresponding  commence- 
ment and  conclusion. 


OF   PLEADINGS  SUBSEQUENT   TO   THE   DECLA- 
RATION. 

"We  now  enter  upon  the  consideration  of  the  rules  exclu- 
sively for  framing  the  Pleadings  which  occur  after  the 
Declaration.  These  Pleadings  are :  1.  The  Plea,  which  is 
the  Defendant's  answer  to  the  Declaration ;  2.  The  Replica- 
tion, which  is  the  Plaintiff's  answer  to  the  Plea;  3.  The 
Rejoinder,  which  is  the  Defendant's  answer  to  the  Replica- 


100  RULES   OF    PLEADING. 

tion ;  4.  The  Surrejoinder,  Avliicli  is  tlic  Plaintiff's  answer 
to  the  Kejoinder;  5.  The  Eebutter,  which  is  the  Defendant's 
answer  to  the  Surrejoinder ;  6.  The  Surrebutter,  which  is 
the  Plaintiff's  answer  to  the  Eebutter,  There  is  no  name 
for  any  further  pleading;  and  it  seldom  occurs,  that  the 
pleadings  extend  beyond  the  rejoinder;  as  the  rejoinder 
must  support  and  not  depart  from  the  plea.  (1st  Chit.  Plea. 
563.)  The  demurrer  can,  of  course,  be  used  instead  of 
either  of  these  pleadings. 

The  plea  is,  by  far,  the  most  important  of  the  pleadings 
which  occur  after  the  declaration ;  and  many  of  the  rules 
which  we  are  about  to  consider,  as  will  be  seen,  apply  exclu- 
sively to  it.  Pleas,  which  go  to  the  merits  of  the  case,  and 
deny  that  the  Plaintiff  ever  had  any  cause  of  action;  or 
admitting  that  he  had,  insist  that  it  is  determined  by  some 
subsequent  matter,  are  Galled  pleas  in  bar.  And  it  is  to  this 
class  of  pleas,  that  the  rules  about  to  be  considered  apply. 
It  is  entirely  out  of  the  scope  of  pleading  to  state  the  various 
defences  in  actions.  These  the  Student  must  learn  from 
the  general  law.  The  of&ce  of  pleading  is  merely  to  de- 
fine their  scopes  and  to  show  the  mode  of  stating  them.  The 
defences,  however,  which  most  usually  occur  in  practice, 
will  be  given  in  the  Forms  in  the  third  chapter  of  this 
treatise. 

The  first  of  the  rules  under  this  head,  is  embraced  in  the 
seventy-fifth  section  of  the  Simplifying  Act,  in  these  words : 

75.  "  Every  pleading  must  be  an.  answer  to  the  whole  of 
what  is  adversely  alleged ;  but  where  there  are  several  allega- 
tions, each  of  which  is  essential  to  the  support  of  the  Plead- 
ing, the  opposite  party  may  traverse  one  or  more  of  them, 
as  he  pleases." 

This  rule  defines  the  scope  of  every  pleading  subsequent 
to  the  declaration.  Each  must  be  an  answer  to  the  whole 
of  what  is  alleged  in  the  pleading  which  it  answers.  Or, 
what  is  the  same  thing,  it  must  answer  some  allegation  that 


RULES   OF   PLEADING.  101 

is  essential  to  tlie  adverse  pleading.  In  eitlier  case,  the 
adverse  pleading  will  be  overthrown,  if  the  subsequent 
pleading  be  sustained. 

And  the  seventj-sixth  section  of  the  Simplifying  Act 
gives  a  rule  that  is  a  consequent  of  this  one.  It  is  as 
follows : 

76.  "  Whenever  a  plea  does  not  answer  the  whole  decla- 
ration, whether  it  professes  to  do  so  or  not,  the  Plaintifi'  may 
have  judgment,  as  by  nil  elicit^  against  the  Defendant,  in 
respect  of  what  is  not  answered." 

For  example:  in  an  action  for  breaking  a  close,  and 
cutting  down  three  hundred  trees,  if  the  Defendant  pleads, 
as  to  cutting  down  all  but  two  hundred  trees,  some  matter 
of  justification  or  title,  and  as  to  the  two  hundred  trees  says 
nothing,  the  Plaintiff  is  entitled  to  sign  judgment  as  by  nil 
elicit^  against  him,  in  respect  of  the  two  hundred  trees,  and 
to  demur  or  reply  to  the  plea  as  to  the  remainder  of  the 
{respass.  Under  the  old  pleading  there  was  a  distinction 
in  a  case  like  this,  where  the  Defendant's  plea  professed  to 
answer,  and  where  it  did  not  profess  to  answer  the  whole 
trespass.  In  the  first  case,  the  plea  was  considered  insuffi- 
cient, and  the  Plaintiff  could  not  sign  judgment  for  the  part 
not  answered,  but  must  demur  to  the  plea  for  insufficiency, 
else,  as  we  shall  presently  see,  the  action  would  be  discon- 
tinued. The  simplified  rule  abolishes  this  distinction;  and 
in  either  case,  a  judgment,  as  by  nil  dicit^  can  be  entered  for 
the  unanswered  part. 

Another  rule,  kindred  to  the  two  just  considered,  is  con- 
tained in  the  seventy-seventh  section  of  the  Act  of  Simplifi- 
cation, in  these  words : 

77.  "Every  pleading  shall  be  considered  as  confessing 
such  traversable  matters  alleged  on  the  other  side,  as  it  does 
not  traverse ;  but  facts  not  traversed  shall  not  be  taken  as 


102  RULES    OF    PLEADING. 

admitted  for  any  otlier  action  between  the  same  parties,  if 
the  present  issue  be  found  for  the  person  traversing." 

If  a  party  did  not  wish  facts  Avhich  he  does  not  traverse, 
to  be  taken  as  admitted  by  him,  in  another  suit  that  might 
grow  out  of  the  same  transaction  under  the  old  Pleading, 
he  protested  as  it  was  called,  as  to  such  facts — which  was  a 
sham  denial  made  merely  to  save  him  from  the  implied  con- 
fession of  the  facts  not  traversed,  if  another  suit  should  be 
instituted,  in  case  the  present  one  should  go  in  his  favor.  The 
rule  under  consideration  does  away  with  the  necessity  of 
the  protestation ;  as,  by  it,  the  facts  not  traversed  shall  not  be 
considered  as  admitted  for  another  suit,  if  the  issue  in  the 
present  one  be  found  for  the  party  traversing.  The  Student 
curious  to  see  the  Form  of  the  Protestation,  will  find  it  in 
Steph.  Plead.  236. 

As  we  have  already  seen,  the  Court,  on  demurrer,  will 
consider  the  whole  series  of  pleadings  and  give  judgment 
for  the  party  who,  on  the  whole,  appears  to  be  entitled  to 
it.  Thus,  on  demurrer  to  the  replication,  if  the  Court  think 
the  replication  bad,  but  perceive  a  substantial  fault  in  the 
2:>lea,  they  will  give  judgment,  not  for  the  Defendant,  but 
the  Plaintiff,  provided  the  declaration  be  good ;  but  if  the 
declaration  also  be  bad  in  substance,  then,  upon  the  same 
principle,  judgment  would  be  given  for  the  Defendant. 
(Steph.  Plead.  162.)  From  this,  it  is  seen,  that  a  pleading- 
does  not  admit  the  sufficiency  in  law  of  the  facts  which  it 
answers.  This  rule  is  contained  in  the  seventy-eighth  sec- 
tion of  the  Simplifying  Act,  in  these  words : 

78.  "  A  pleading  shall  not  be  considered  as  admitting 
the  sufficiency  in  law  of  the  facts  adversely  alleged." 

We  have  seen,  by  the  fifty-second  section  of  the  Simplify- 
ing Act,  that  matter  of  law  must  not  be  stated  in  a  pleading. 
If  though  such  matter  should  be  stated,  it  cannot  be  tra- 


RULES    OF    PLEADING.  103 

versed.  Questions  of  law  are  raised  only  by  demurrer ; 
therefore,  the  party  wishing  to  deny  a  legal  inference,  which 
may  chance  to  be  stated  in  a  pleading,  must  do  it  by 
demurrer.  For  example:  to  an  action  for  fishing  in  the 
Plaintiff's  fishery,  the  Defendant  pleaded,  that  the  locus  in 
quo  was  an  arm  of  the  sea,  in  which  every  subject  of  the 
realm  had  liberty  and  privilege  of  free  fishing;  and  the 
Plaintiff,  in  his  replication,  traversed  that  in  the  said  arm 
of  the  sea  every  subject  of  the  realm  had  the  liberty  and 
privilege  of  free  fishing.  This  was  held  to  be  a  traverse  of 
a  mere  inference  of  laiv,  and  therefore  bad.  But  where  an 
allegation  is  mixed  of  law  and  fact,  it  may  be  traversed. 
Thus,  in  answer  to  an  allegation  that  a  man  was  taken  out 
of  prison  by  virtue  of  a  certain  writ  of  habeas  corpus,  it 
may  be  traversed,  that  he  was  taken  out  of  prison  by  virtue 
of  the  writ.  (Steph.  Plead,  pp.  215-16.)  This  matter  is 
regulated  by  the  seventy-ninth  section  of  the  Simplifying 
Act  as  follows : 

79.  "  A  traverse  must  not  be  taken  upon  matter  of  law : 
but  where  a  mere  legal  inference  is  stated  in  a  pleading, 
and  the  opposite  party  wishes  to  deny  it,  his  course  shall 
be  to  demur.  But  where  an  allegation  is  mixed  of  law  and 
fact,  it  may  be  traversed." 

It  is  not  necessary  to  state  in  a  pleading,  matter  that  is 
implied  in  it.  For  example :  If  a  man  pleads  that  he  is 
heir  to  A.,  he  need  not  say  that  A.  is  dead ;  for  it  is  implied, 
as  no  one  can  be  the  heir  of  a  living  man.  But  the  opposite 
party  may,  instead  of  denying  that  ho  is  heir  to  A.,  plead 
specially,  that  A.  is  not  dead.  This  is  authorized  by  the 
eightieth  section  of  the  Act  of  Siniplilication. 

80.  "A  traverse  must  not  bo  taken  u[)0u  matter  not 
alleged;  but  it  may  be  taken  upon  matter,  which,  though 
not  expressly  alleged,  is  ucccssarily  implied." 


10-1:  RULES    OF   TLEADING. 

Where  a  Plaintifi'  is,  by  law,  entitled  to  recover  in  'pro 
portion  to  the  loss  or  injury  he  has  actually  sustained,  or  the 
service  he  has  rendered,  it  follows  that  a  traverse  which  ties 
him  up  to  prove  the  whole  damage  or  claim  stated  in  his 
declaration,  ought  not  to  be  allowed.  Thus,  on  a  policy 
of  insurance,  the  Plaintiff  averred,  tliat  the  ship  insured  did 
not  arrive  in  safety ;  but  that  the  said  ship,  tackle,  apparel, 
ordnance,  munition,  artiller}^,  boat,  and  other  furniture  were 
sunk  and  destroyed  in  the  said  voyage.  The  Defendant, 
instead  of  denying  disjunctively^  that  the  ship  or  tackle,  &c., 
was  sunk  or  destroyed,  denied  conjunctively  that  the  ship, 
tackle,  apparel,  ordnance,  munition,  artillery -boat,  and  other 
furniture,  were  sunk  and  destroyed  in  the  voyage.  As  the 
Plaintiff  would  be  entitled  to  recover  compensation /or  any 
part  of  that  which  was  the  subject  of  insurance,  and  had 
been  lost,  the  Defendant,  obviously,  ought  not  to  be  permitted 
so  to  plead,  that  if  issue  be  joined  on  his  Plea,  and  he  should 
prove  that  only  a  cable  or  anchor  arrived  in  safety,  he 
would  be  acquitted  of  the  whole  loss,  as  a  traverse  in  the 
conjunctive  form  would  authorize.  Therefore,  upon  de- 
murrer, the  traverse  was  adjudged  bad.  (2  Saund.  206.)  So 
in  an  action  for  compensation  for  the  Plaintiff's  service,  as 
a  hired  servant,  the  Plaintiff  alleged  that  he  served  from 
the  21st  March,  161:7,  to  1st  November,  1664.  The  De- 
fendant denied,  that  the  Plaintiff  served  until  the  1st  of 
November,  1664.  This  traverse  ties  up  the  Plaintiff,  to 
prove  that  he  served  the  whole  time  alleged  ;  whereas  he  is 
entitled  to  compensation  pro  tanto^  for  any  period  of  service. 
The  traverse  is  therefore  bad.  (1  Saund.  267-8,  n,  (1).) 
The  principle  of  these  cases  is  contained  in  the  eighty-first 
section  of  the  Simplifying  Act,  in  these  words : 

81.  "Where  a  part  of  the  facts  stated  constitute  a  cause 
of  action  or  a  defence,  the  part  must  be  denied  as  well  as  the 
whole ;  and  if  the  part  be  proved  it  will  be  sufficient.  And 
where  a  sum  of  money  is  alleged  to  be  due,  the  denial  must 
be,  that  no  part  of  it  is  due ;  and  a  general  denial,  or  a 


EULES   OF   PLEADING.  105 

denial  that  the  whole  sum  is  not  due,  shall  be  taken  to 
mean  that  no  part  of  the  sum  is  due." 

The  eighty- second  section  of  the  Simplifying  Act,  con- 
tains a  rule  of  kindred  import  with  the  one  just  considered. 
Its  design,  like  the  one  just  considered,  is  to  remedy  the 
evil  of  pleading  too  broadly,  and  thereby  letting  the  real 
issue  slip  through  the  alternate  pleadings.  It  compels  a 
party,  who  is  to  answer  a  pleading,  which  is  too  broad  to 
plead  in  such  a  way  as  to  na-^row  the  pleading  of  his  adver- 
sary, by  denying  it  in  a  way  that  will  enable  the  adversary 
to  sustain  himself,  if  he  really  have  a  cause  of  action  or  a 
defence,  but  less  general  than  the  one  stated.  This  evil  is 
not  likely  to  occur  in  practice,  with  the  Kules  for  specific 
statement  prescribed  by  the  Simplifying  Act.  This  section, 
like  some  others,  is  therefore,  inserted  out  of  abundant 
caution.     It  is  in  these  words : 

82.  "  "Where  an  allegation,  less  general  than  the  one  set 
forth  in  a  pleading,  would  constitute  a  cause  of  action,  or  a 
defence,  or  a  reply,  the  Defendant  or  Plaintiff  shall  not  deny 
it  generally,  but  shall  so  plead  as  to  deny  any  cause  of 
action  or  defence  in  the  case." 

The  next  section  of  the  Act  grows  out  of  the  same  diffi- 
culty with  the  preceding  section.  It  enacts,  that  where  the 
Plaintiff  tenders  such  a  traverse  to  the  Defendant's  plea,  as 
to  enable  himself  to  recover  without  proving  any  right  in 
himself,  the  pleading  shall  be  amended.  It  will,  perhaps, 
be  a  little  startling  to  even  the  most  experienced  lawyer, 
that  the  exigencies  of  judicial  investigation  should  be 
thought  to  require  such  a  Rule.  But  there  have  been 
cases,  where  judgment  has  been  given  for  a  Plaintiff',  though 
he  had  proved  no  right  in  himself;  owing  to  the  issue 
formed  by  the  pleadings  being  too  broad  ;  as  for  instance  : 
In  an  action  for  fishing  in  the  Plaintiff''s  fishery,  the  De- 
fendant pleads  that  all  persons  have  the  right  to  fish  in  it, 


106  RULES    OF    TLEADING. 

•  and  the  Plaintiff  replies  that  all  persons  have  not  the  right. 
Upon  such  an  issue  the  Plaintiff  would  have  judgment  by 
showing  that  it  was  the  separate  right  of  any  person ;  and 
his  own  right  might  not  come  into  controversy  at  all.  Just 
such  a  case  as  this,  was  argued  several  times  in  the  Exche- 
quer Chamber  in  England,  before  the  Court  could  bring 
themselves  to  reverse  the  judgment.  Though  the  Court 
did  at  last  say  in  their  judgment,  that  "  from  the  moment 
it  appeared  that  upon  the  pleadings  the  Plaintiff  might 
have  recovered  a  verdict  in  an  action  of  trespass,  without 
having  either  possession  or  right,  it  seemed  very  difficult  to 
support  the  judgment."     The  section  is  as  follows: 

83.  "  Whenever  the  traverse  tendered  by  a  Plaintiff"  to 
the  Defendant's  plea  is  such  as  will  enable  the  Plaintiff"  to 
recover,  without  proving  his  right,  it  shall,  upon  motion,  be 
amended  by  the  Court." 

"We  have  seen,  that  by  the  seventy -fifth  section  of  the 
Simplifying  Act,  every  pleading  must  be  an  answer  to  the 
whole  of  what  is  adversely  alleged.  This  was  the  rule 
under  the  old  system  of  pleading ;  and  if  the  Defendant's 
plea  did  not  answer  the  whole  Declaration,  and  the  Plaintiff 
failed  to  take  judgment  for  the  part  not  answered,  but  only 
demurred  or  replied  to  the  plea,  there  was  thereby  produced 
an  interruption  or  chasm  in  the  pleading,  called,  in  tech- 
nical phrase,  a  discontinuance.  The  eighty-fourth  section  of 
the  Act  of  Simplification  is  designed  to  prevent  a  discon- 
tinuance in  such  cases.     It  is  as  follows : 

8i.  "  Whenever  a  plea  does  not  answer  the  whole  de- 
claration,-and  the  Plaintiff  demurs  to  it,  without  entering 
judgment  for  that  part  of  his  declaration  which  is  not 
answered  by  the  plea,  the  action  shall  not  be  discontinued, 
but  the  demurrer  shall  apply  to  the  plea,  in  the  same  man- 
ner, as  if  judgment  had  been  entered  for  the  part  of  the 
declaration  not  answered." 


RULES    OF    PLEADING.  107 

The  seventv-sixtli  section  of  tlie  Simplifying  Act  is  co- 
operntive  with  the  eighty-fourth  section,  as  has  been  seen, 
in  remedying  the  evil  when  a  plea  does  not  answer  the 
whole  declaration.  The  two  sections  must,  therefore,  be 
considered  together. 

The  next  section  of  the  Act  of  Simplification  is  in  these 
words : 

85.  "  It  shall  not  be  allowable,  both  to  plead  and  demur 
to  the  same  matter ;  but  if  the  demurrer  be  overruled,  then 
the  party  shall  be  allowed  to  withdraw  the  demurrer  and 
to  plead." 

This  rule,  it  will  be  observed,  only  prohibits  the  pleading 
and  demurring;  to  the  same  matter.  It  does  not  forbid  this 
course  in  regard  to  distinct  statements.  A  man  may  plead  to 
one  count,  or  one  plea,  and  demur  to  another.  (Step.  Plead. 
296.) 

We  have,  heretofore,  shown  that  the  demurrer  is  the 
pleading,  by  which  "questions  of  law  are  raised.  But  it 
must  be  observed,  that  the  whole  proceeding  of  trial  by 
jury,  takes  place  under  the  superintendence  of  a  Judge, 
who  decides  all  points  as  to  the  admissibility  of  evidence, 
and  directs  the  jury  on  all  such  points  of  law  arising  on  the 
evidence,  as  are  necessary  for  their  guidance  in  appreciating 
its  legal  effect,  and  drawing  the  proper  conclusion  in  their 
verdict.  These  questions  of  law  that  spring  out  of  the 
application  of  the  evidence  to  the  pleadings,  are  raised,  by 
either  part}^,  by  a  prayer,  as  it  is  called,  to  the  Court  for  its 
instruction  on  the  questions  to  the  jury;  and  the  "jury  are, 
in  civil  cases,  bound  by  the  instruction  of  the  Court  on  all 
such  questions  of  law,  just  as  the  decision  of  the  Court,  in 
questions  of  law  raised  by  demurrer,  must  be  considered 
the  la,w  of  the  case.  This  principle  is  embodied  in  the 
eighty-sixth  section  of  the  Simplifying  Act,  as  follows  : 


108  RULES   OF    PLEADING. 

86.  "  All  questiqjis  of  law,  unless  raised  by  demurrer, 
shall  fall  uuder  the  decision  of  the  Jury  in  the  issue  in  fact, 
subject  to  the  direction  of  the  Court,  upon  a  praj^er  for  that 
purpose." 

The  eighty-seventh  section  of  the  Simplifying  Act  pro- 
vides for  the  case  where  a  pleading  amounts  to  neither  a 
traverse  nor  a  confession  and  avoidance.  It  is  in  these 
words : 

87.  "  When  a  party  pleads,  it  must  be  either  by  Avay  of 
traverse,  or  of  confession  and  avoidance;  and  if  the  plead- 
ing amounts  to  neither  of  these  modes  of  answer,  it  shall, 
upon  motion  be  set  aside." 

In  pleading  it  may  sometimes  happen,  that  the  pleadings 
of  both  parties  will  be  afiirmative  in  the  forun  of  ivords,  and 
yet  are  sufficiently  affirmative  and  negative  in  effect  to  form 
a  good  issue.  Thus  if  the  Defendant  plead  that  he  was  born 
in  France,  and  the  Plaintifi:'  that  he  was  born  in  Maryland, 
an  issue  will  be  formed.  But  the  two  affirmatives  may  not 
impliedly  negative  each  other ;  and  the  simplifying  Act  has 
provided  a  rule  for  such  a  case  as  follows : 

88.  "  Whenever  in  pleading,  there  shall  be  two  affirma- 
tives which  do  not  impliedly  negative  each  other,  the  next 
pleading  to  be  pleaded  shall  deny  the  last  affirmative ;  and 
the  other  shall  go  for  nothing." 

This  rule  can  hardly  ever  be  needed  in  practice ;  it  being 
precautionary  against  a  possible  evil  only. 

It  certainly  comports  with  every  notion  of  justice  that  the 
parties  to  an  action  should  be  at  liberty,  to  place  before  the 
tribunal  which  is  to  decide  upon  their  disputes,  all  the 
grounds  upon  which  they  can  fairly  rest  their  claim  or  de- 
fence.    But  then  it  is  clear  to  all  who  have  experience  in 


RULES   OF   PLEADING.  109 

judicial  investigations,  that  some  limit  sliould  be  put  to  tlie 
liberty  of  pleading  or  replying  several  matters  whether  of 
fact  or  law.  To  devise  a  rule,  which  will  afford  sufficient 
liberty  to  the  parties  of  presenting  all  the  grounds  of  their 
claim  or  defence,  without  allowing  them  a  license  which 
they  can  abuse,  is  no  easy  matter.  The  Act  of  Simplifica- 
tion gives  the  fullest  liberty  to  both  Plaintiff  and  Defendant, 
subject  to  the  discretionary  control  of  the  Court.  The  dis- 
cretionary control  of  the  Court  is  better  than  any  fixed  rule 
of  limit ;  because  such  a  rule  must  in  some  cases  operate 
unjustly,  as  it  cannot  anticipate  and  provide  for  every  con- 
tingency ;  whereas  a  wise  discretion  can  j^rovide  for  it  when 
it  does  arise.  But  to  prevent  the  discretion  of  the  Court 
from  being  exercised  arbitrarily,  it  is  limited  by  the  affidavit 
of  the  parties.  And  the  parties  too  are  checked  by  their 
oaths,  and  by  costs.  The  section  of  the  Act  is  in  these  words : 

89.  "  The  Plaintiff"  in  any  action  may  plead,  in  answer  to 
the  plea  or  any  subsequent  pleading  of  the  Defendant,  as 
many  several  matters  as  he  shall  think  necessary  to  ^stain 
his  action:  and  the ' Defendant  in  any  action  may  plead,  in 
answer  to  the  Declaration,  or  other  subsequent  pleading  of 
the  Plaintiff",  as  many  several  matters  as  he  shall  think  ne- 
cessary for  his  defence ;  provided,  that  the  party  so  pleading 
or  his  Attorney  makes  affidavit,  if  required  by  the  Court, 
to  the  effect,  that  he  is  advised  and  believes  that  he  has  just 
ground  to  traverse  the  several  matters  proposed  to  be  tra- 
versed by  him,  and  that  the  several  matters  sought  to  be 
pleaded  as  aforesaid,  by  way  of  confession  and  avoidance, 
are  respectively  true  in  substance  and  in  fact.  And  the 
costs  of  any  issue,  either  of  fact  or  law,  shall  follow  the  find- 
ing or  judgment  upon  such  issue,  and  be  adjudged  to  the 
successful  party,  whatever  may  be  the  result  of  the  other 
issue  or  issues." 

At  the  common  law  a  Defendant  could  plead  only  one 
defence  to  the  Plaintiff"'8  claim,  no  matter  how  many  valid 


110  RULES   OF    PLEADING. 

defences  he  had.  But  as  the  rule  was  found  by  experience, 
to  operate  injustice,  the  Statute  of  4  &  5  Anne,  ch.  16,  sec.  4, 
gave  the  Defendant  the  liberty  to  plead  several  pleas  to  the 
same  claim  or  complaint,  "  with  leave  of  the  Court."  The 
Simplifying  Act  has  extended  the  principle  of  the  Statute 
of  Anne  beyond  the  plea,  to  which  that  statute  confined  it, 
to  all  the  subsequent  pleadings. 

Under  the  old  system,  pleadings  subsequent  to  the  Dec- 
laration were  required  to  have  their  proper  formal  com- 
mencements and  conclusions.     These  defined  the  character 
of  the  pleadings :  showing  whether  they  were  intended  as 
being  in  abatement,  or  in  bar,  &c.     Accordingly,  if  a  plea 
commenced  and  concluded,  as  in  bar,  but  contained  matter 
sufficient  only  to  abate  the  writ,  it  was  a  bad  plea  in  bar, 
and  no  plea  in  abatement.     And  if  a  plea  commenced  and 
concluded,  as  in  abatement,  and  showed  matter  in  bar,  it 
was  a  plea  in  abatement,  and  not  in  bar.     And  as  the  con- 
clusion of  all  pleadings,  which  did  not  tender  issue  as  it  was 
called^  prayed  the  judgment  of  the  Court,  it  was  in  such 
cases  called,  the  prayer  of  judgment.     The  commencement 
to  a  plea  in  bar  was  called  Actionem  non;  to  a  plea  in  bar 
founded  on  matter  arising  after  the  commencement  of  the 
action,  was  called  Actionem  ulterius  non  ;  to  a  plea  in  bar,  to 
an  action  of  debt  on  bond,  showing  that  the  Plaintiff  never 
had  any  right  of  action,  as  that  the  bond  was  void  for  ille- 
gality, was  called  Onerari  non  ;  and  to  a  replication  to  a  plea 
in  bar,  was  Precludi  non.     The  Simplifying  Act  has  by  the 
ninetieth  section  abolished  all  these  and  the  like  formula,  as 
follows : 

90.  "  In  a  Plea  or  subsequent  pleading  it  shall  not  be 
necessary  to  use  any  allegation  of  Actionem  non,  or  Actionem 
ulterius  non,  or  Onerari  non,  or  to  the  like  effect,  or  any 
Prayer  or  Judgment,  nor  shall  it  be  necessary  in  any  Eepli- 
cation  or  subsequent  Pleading,  to  use  any  allegation  of  Pre- 
cludi non  or  to  the  like  effect,  or  any  Prayer  of  Judgment." 


RULES   OF    PLEADING.  Ill 

The  old  system  also  required  Pleas  to  he  pleaded  with 
defence^  w-hich  was  a  certain  form  of  words,  by  which  the 
plea  was  introduced ;  the  form  varying  in  some  degree 
according  to  the  nature  of  the  action.  In  trespass  it  was  as 
follows :  "  And  the  said  Defendant  by  T.  T.  his  attorney, 
comes  and  defends  the  force  and  injury  when,"  &c.  In  all 
other  personal  actions :  "  And  the  said  Defendant  by  T.  T. 
his  attorney,  comes  and  defends  the  wrong  and  injury 
when,"  &c.  The  ninety-first  section  of  the  Act  of  Simplifi- 
cation abolishes  this  formal  defence  and  introduces  a  very 
simple  commencement,  and  requires  no  conclusion,  for 
Pleas.    It  is  as  follows: 

91.  "No  formal  defence  shall  be  required  in  a  Plea,  or 
Avo^^Ty,  or  Cognizance,  and  it  shall  commence  as  follows, 
or  to  the  like  effect : 

"  The  Defendant  by his  Attorne}^,  {or  in  person,  as 

the  case  may  be)  says  that  [here  state  First  Defence)'''' 

And  it  shall  not  be  necessary  to  state  in  a  second  or  other 
Plea,  or  Avowry,  or  Cognizance,  that  it  is  pleaded  by  leave 
of  the  Court,  or  according  to  the  form  of  the  Statute,  or  of 
the  Act  of  Assembly,  or  to  that  efiect ;  but  every  such  Plea, 
Avowry,  or  Cognizance  shall  be  written  in  a  separate  para- 
graph, and  numbered,  and  shall  commence  as  follows,  or  to 
the  like  effect : 

"And  for  a  Second  (&c.)  Plea  the  Defendant  says  that 
{here  state  Second  {<&c)  Defence:)^''  or  if  pleaded  to  part  only, 
then  as  follows,  or  to  the  like  effect : 

"And  for  a  Second  (&;c.)  Plea  to  {stating  to  ivhat  it  is 
pleaded)  the  Defendant  says  that,"  &c., 

and  no  formal  Conclusion  shall  be  necessary  to  any  Plea, 
Avowry,  Cognizance,  or  other  subsequent  Pleading." 

It  is  seen  that  the  terms,  Avoicry  and  Cognizance  are  used 
in  the  above  section.  They  arc  pleadings  peculiar  to  the 
action  of  lieplevin.     If  the  Defendant  pleads  some  matter 


112  RULES   OF    PLEADING. 

confessing  tlic  detaining  of  tlie  property,  but  showing  lawful 
title  or  excuse,  such  pleading  is  not  (as  it  would  be  in  other 
actions)  called  a  plea  in  bar,  but  an  avowry  or  cognizance  ;  the 
former  term,  applying  to  the  case  where  the  Defendant  sets 
up  right  or  title  in  himself:  the  latter,  where  he  alleges 
right  or  title  to  be  in  another  person  by  whose  command  he 
acted.  The  answer  to  the  avowry  or  cognizance  is  called  a 
23lea^  then  follows  the  replication,  ka. ;  the  ordinary  name  of 
each  pleading  being  postponed  one  step.  The  avowry  and 
cognizance  are,  in  fact,  of  the  nature  of  a  declaration. 

The  ninety-second  and  ninety-third  sections  of  the  Sim- 
plifying Act  enable  a  party  to  plead  any  defence  which  may 
arise  after  the  commencement  of  the  action,  or  after  the  last 
pleading,  without  any  other  form  than  that  which  the  nature 
of  such  pleadings  must  necessarily  have,  in  the  language 
wdiich  expresses  them  the  most  exactly.  These  two  sections, 
together  with  the  two  immediately  preceding,  make  the  form 
of  all  pleas  as  simple  as  the  most  exact  demands  of  a  com- 
mon sense  system  of  law  procedure  can  require.  The  sec- 
tions under  special  consideration  are  in  these  words : 

92.  "  Any  defence  arising  after  the  commencement  of  any 
action  shall  be  pleaded  according  to  the  fact,  without  any 
formal  commencement  or  conclusion ;  and  any  plea,  which 
does  not  state  whether  the  defence  set  up  arose  before  or 
after  action,  shall  be  deemed  to  be  a  plea  of  matter  arising 
before  action. 

93.  "  Any  defence  w^hich  may  arise  after  the  last  pleading, 
in  any  case,  may  be  pleaded  with  an  allegation  that  the  mat- 
ter has  arisen  since  the  last  pleading," 

By  the  ninety-fourth,  fifth  and  sixth  sections  of  the  Act 
of  Simplification,  in  all  actions,  except  for  causes  into  which 
some  degree  of  criminality  enters  (which  are  enumerated), 
the  defendant,  or  one  or  more  of  several  defendants,  shall  be 


RULES   OF    PLEADING.  113 

at  liberty  to  pay  into  Court  a  sum  of  money,- by  way  of 
compensation  or  amends ;  and  tbe  plaintiff"  shall  either  accept 
or  reject  the  sum  so  paid  in.  And  in  case  he  shall  reject  the 
sum,  and  the  jury  shall  find  that  it  is  sufficient,  the  defend- 
ant shall  be  entitled  to  his  costs  of  suit,  and  the  plaintiff 
only  to  the  sum  paid  into  Court.  And  a  proper  form  of 
plea  is  provided  for  the  case. 

These  sections  are  intended  to  encourage  the  settlement 
of  cases  without  trial.  The  rights  of  plaintiff  and  defendant 
are  equally  considered.  If  the  plaintiff  does  not  accept  the 
sum  paid  into  Court,  he  runs  the  risk  of  paying  the  costs  of 
the  suit.  And  as  the  defendant  is  precluded  from  denying  the 
claim  of  the  plaintiff,  if  he  pleads  a  sum  in  satisfaction,  so 
far  as  the  matter  to  which  it  is  pleaded  is  concerned,  he  will 
hardly  make  such  an  offer,  except  in  cases  where  justice 
requires  it.  The  excepted  cases  involve  an  injury  to  the 
plaintiff's  feelings,  and  are  not  properly  within  the  justice  of 
the  rule ;  as  in  such  cases  a  plaintiff  ought  to  have  a  free 
course  of  redress,  to  deter  men  from  wrongs  to  their  neigh- 
bours.    The  sections  are  as  follows: 

9-i,  "  It  shall  be  laAvful  for  the  defendant,  or  for  one  or 
more  of  several  defendants,  in  all  Actions  (except  Actions 
for  Assault  and  Battery,  False  Imprisonment,  Libel,  Slander, 
Malicious  Arrest  or  Prosecution,  Criminal .  Conversation,  or 
debauching  of  the  Plaintiff's  daughter  or  servant),  to  pay 
into  Court  a  sum  of  money,  by  way  of  compensation  or 
amends ;  and  the  money  shall  be  paid  to  the  Clerk,  subject 
to  the  order  of  the  Court,  and  the  Clerk  shall  give  a  receipt 
for  it  upon  the  back  of  the  plea,  and  the  said  sum  shall  be 
paid  out  to  the  Plaintiff)  or  his  Attorney,  upon  a  written 
authority  from  the  Plaintiff'  on  demand. 

95.  "  When  money  is  paid  into  Court,  such  payment  shall 
be  pleaded  as  near  as  may  be  in  the  following  form : 

"  'The  Defendant,  by ,  his  Attorney  {or  in  person^ 


ll-t  RULES   OF    PLEADING. 

d-c.,)  (if  plefided  to  part,  sa}',  as  to  $ ,  parcel  of  the  money 

claimed),  brings  into  Court  the  sum  of  $ ,  and  says  that 

the  said  sum  is  enough  to  satisfy  the  claim  of  the  Plaintiff, 
in  respect  of  the  matter  therein  pleaded  to.' 

96.  "  The  Plaintiff,  after  the  delivery  of  a  plea  of  Pay- 
ment of  Money  into  Court,  shall  be  at  liberty  to  reply  to  the 
same,  by  accepting  the  sum  so  paid  into  Court  in  full  satis- 
faction and  discharge  of  the  cause  of  Action,  or  of  the  mat- 
ter in  respect  of  which  it  has  been  paid  in,  and  he  shall  be 
at  liberty  in  such  case  to  have  his  costs  taxed,  and  if  they 
be  not  immediately  paid,  he  shall  have  judgment  for  the 
costs  so  taxed ;  or  the  Plaintiff  may  reply  that  the  sum  paid 
into  Court  is  not  enough  to  satisfy  the  claim  of  the  Plaintiff, 
in  respect  of  the  matter  to  which  the  plea  is  pleaded  ;  and, 
in  the  event  of  an  issue  thereon  being  found  for  the  Defend- 
ant, the  Defendant  shall  be  entitled  to  his  costs  of  suit,  and 
.the  Plaintiff  to  the  sum  paid  into  Court." 

There  are  certain  causes  of  action  which  may  be  con- 
sidered to  partake  of  the  character  both  of  breaches  of 
contract  and  of  wrongs.  It  may,  therefore,  sometimes  be 
doubtful  whether  the  plea  should  treat  the  declaration  as 
framed  for  a  breach  of  contract  or  for  a  wrong.  The  ninety- 
seventh  section  9f  the  Simplifying  Act  applies  to  such  cases 
the  following  rule : 

97.  ""Whenever  there  may  arise  a  doubt  whether  the 
cause  of  action  is  of  the  nature  of  a  breach  of  contract  or 
of  a  wrong,  the  Court  shall  give  the  Defendant  the  benefit 
of  the  doubt ;  and  any  Plea  in  such  case,  which  shall  be 
good  in  substance,  shall  not  be  objectionable  on  the  ground 
of  its  treating  the  Declaration,  either  as  framed  for  a  breach 
of  contract  or  for  a  wrong." 

It  is  a  rule  of  pleading,  that  an  entire  plea  is  not  divisible. 
Therefore,  if  a  plea  be  pleaded  to  the  whole  declaration,  and 
is  not  an  answer  to  all  the  counts,  though  it  be  to  some,  the 


RULES   OF    PLEADING.  115 

plea  being  indivisible,  is  no  answer  to  the  connts  to  wliicli 
it  would  be  an  answer  if  pleaded  to  tliem  onlj^.  Tbe  plea 
of  set-off,  under  tlie  old  system  of  pleading,  was  no  excep- 
tion to  this  rule,  and  if  pleaded  to  the  wbole  declaration,  and 
the  Defendant  proved  some  amount  of  set-off,  but  not  exceed- 
ing or  equalling  the  Plaintiff's  aggregate  demands,  the  De- 
fendant could  have  no  allowance  for  so  much  as  proved,  but 
the  Plaintiff  would  have  verdict  for  his  whole  claim.  (1st 
Saund.  E.  28,  n.  2,  and  n.  d)  The  Act  of  Simplification 
has  changed  the  rule  in  regard  to  set-off,  and  other  pleas 
which  are,  like  it,  distributive  in  their  nature,  by  the  follow- 
ing section : 

98.  "  Pleas  of  payment  and  set-off,  and  other  pleadings 
capable  of  being  construed  distributively,  shall  be  taken 
distributively,  and  if  issue  is  taken  thereon,  and  so  much 
thereof  as  shall  be  sufficient  answer  to  part  of  the  causes 
of  action  proved,  shall  be  found  true  by  the  Jury,  a  verdict 
shall  pass  for  the  Defendant  in  respect  of  so  much  of  the 
causes  of  action  as  shall  be  answered,  and  f^r  the  Plaintiff 
in  respect  of  so  much  of  the  causes  of  action  as  shall  not 
be  answered." 

The  ninety-ninth  section  of  the  Act  of  Simplification  pre- 
scribes a  simple  form  of  pleading,  which  will  amount  to  a 
denial,  in  the  words  of  the  allegation  denied,  of  a  plea  or 
any  subsequent  pleading  and  a  joinder  of  issue  thereon.  It 
is  in  these  words : 

99.  "  Either  party  may  plead,  in  answer  to  the  Plea  or 
Subsequent  Pleading  of  his  adversary,  that  he  joins  issue 
thereon,  which  Joinder  of  Issue  may  be  as  follows,  or  to  the 
like  effect : 

'"The  PLaintif["  joins  issue  upon  the  Defendant's  1st,  &c., 
{specifying  vjJuit  or  lohal  part,)  Plea.' 

"  '  The  Defendant  joins  issue  upon  the  Plaintiff's  Koplica- 
tion  to  the  1st,  &c.,  {specifying  ivhat,)  Plea.' 


IIG  RULES   OF   PLEADING. 

"  And  sucli  Form  of  Joinder  of  Issue  shall  be  deemed  a 
direct  denial  of  the  Substance  of  the  Plea,  or  other  Subse- 
quent Pleading,  and  an  issue  thereon." 

The  hundredth  section  of  the  Simplifying  Act  is  in  these 
AYords : 

100.  "  Whenever  any  particular  fact  is  selected  and  directly 
denied,  as  well  as  where  all  the  facts  are  directly  denied,  by 
any  pleading,  the  party  to  plead  next,  shall  merely  add  a 
joinder  of  issue." 

By  the  old  system  of  pleading,  where  ever  an  express 
denial  of  fact  occurred  in  pleading,  issue  must,  at  the  same 
time,  be  tendered  on  the  fact  denied.  For,  as  by  the  con- 
tradiction, it  sufficiently  appears,  what  is  the  issue  or  matter 
in  dispute  between  the  parties,  the  pleadings  ought  to  be 
closed,  and  the  method  of  deciding  the  issue  be  adjusted. 
Tendering  issue,  meant  an  offer  to  refer  the  issue  or  matter 
in  dispute,  to  some  mode  of  trial;  and  this  was  done  by 
annexing  to  the  traverse  an  appropriate  formula,  proposing 
either  a  trial  by  the  country  (i.  e.  by  jury)  or  such  other  mode 
as  by  law  belonged  to  the  point.  The  formula,  tendering 
an  issue  to  be  tried  by  a  jury,  was  called  the  conclusion  to 
the  country,  and  was  as  follows :  "  And  of  this,  the  said  C. 
D.  puts  himself  upon  the  country."  When  the  issue  was 
thus  tendered,  it  being  well  tendered,  nothing  Avas  left  to 
the  opposite  party  but  to  accept  or  join  in  it,  which  might 
be  done  in  these  words :  "  And  the  said  A.  B.  doth  the 
like."     This  formula  was  called  the  similiter. 

As  by  the  ninety -first  section  of  the  Act  of  Simplification, 
no  formal  conclusion  is  necessary  to  any  plea  or  subsequent 
pleading,  the  formula  of  tendering  issue,  and  of  joining  in 
it  are  done  away.  The  hundredth  section,  therefore,  is  in- 
troduced to  compel  a  party  to  add  a  joinder  of  issue,  where, 
under  the  old  system,  one  was  necessarily  tendered  and 
accepted.     This  joinder  may  be  in  the  form  given  above  in 


RULES    OF    PLEADING.  117 

tlie  ninety-nintli  section  of  tlie  Act  of  Simplification.     And 
sucli  joinder  of  issue  closes  tlie  pleadings. 

The  nest  section,  tlie  one  linndredth  and  one,  is  similar  in 
purpose  \\4tlL  tlie  preceding.  Whenever  the  defendant 
cannot  take  any  other  issue,  without  a  departure,  than  the 
one  formed  by  his  plea,  the  Plaintiff  may  cut  the  pleadings 
short  at  once,  by  adding  a  joinder  of  issue  for  the  defend- 
ant.    The  section  is  as  follows: 

101.  "Whenever  a  Defendant  cannot  take  any  new  or 
other  issue  in  his  rejoinder,  than  the  matter  he  has  pleaded, 
without  a  departure  from  his  plea,  or  when  the  issue  on  the 
rejoinder  would  be  the  same  in  substance,  as  on  the  plea, 
the  Plaintiff  shall,  in  his  Replication,  plead  that  he  joins 
issue  on  the  Defendant's  plea,  and  may  add  a  joinder  of  issue 
for  the  Defendant." 

The  next  two  sections  of  the  Act  of  Simplification  relate 
to  traverses  of  immaterial  matter.  The  first  of  the  sections 
applies  where  the  traverse  is  exclusively  of  immaterial 
matter.  The  second  applies,  where  it  is  only  partially  of 
immaterial  matter.  As  the  precise  and  simple  mode  of 
statement  employed  in  the  simplified  pleadings,  leaves  out 
a  great  deal  of  immaterial  matter  which  was  required,  for 
the  sake  of  form,  in  the  old  pleadings,  the  evil  of  traversing 
immaterial  matter  will  not  occur  so  often  as  heretofore.  The 
sections  are  as  follows : 

102.  "  If  a  traverse  be  taken  upon  an  immaterial  allegation, 
that  is,  on  matter  which  is  either  irrelevant  or  insufficient  in 
law,  or  matter  which  is  only  introductory  or  explanatory,  or 
matter  of  aggravation,  the  opposite  party  may  have  judg- 
ment as  for  want  of  a  plea. 

103.  "No  more  of  an  allegation  shall  be  traversed  than  is 
material.     The  circumstances,  which,  though  forming  a  part 


118  RULES    OF   PLEADING. 

of  the  allegation,  arc  immaterial  to  the  merits  of  the  action, 
must  not  be  traversed,  and,  if  traversed,  the  traverse  shall 
upon  motion  be  corrected,  the  party  so  traversing  paying 
costs." 

The  next  section  which  comes  under  consideration  is  in 
these  words: 

10-i.  "It  shall  not  be  necessary  for  the  Defendant  to  verify 
the  truth  of  any  plea,  except  dilatory  pleas,  by  affidavit  or 
affirmation ;  nor  being  heir,  executor,  or  administrator,  to 
obtain  leave  of  the  Court,  to  put  in  a  plea  denying  that  the 
alleged  deed,  in  the  suit,  is  not  the  deed  of  the  ancestor,  tes- 
tator or  intestate." 

The  Act  1785,  ch.  80,  3,  required  a  Defendant  to  verify 
by  af&davit  or  affirmation  the  plea  of  non  est  factum  ;  and 
an  heir,  executor  or  administrator,  to  obtain  leave  of  the 
Court,  npon  just  cause  shown,  to  plead  such  a  plea.  The 
Act  of  Simplification  has  abolished  the  general  issues,  and 
therefore  there  is  now  no  general  issue,  non  est  factum  ;  yet 
there  is  a  plea  in  the  same  form  of  negation ;  and  to  prevent 
disputes  as  to  the  effect  of  the  abolishment  of  general  issues, 
on  the  third  section  of  the  Act  1785,  ch.  80,  the  104  section 
of  the  Act  of  Simplification  was  introduced.  The  section 
does  not  dispense  with  the  requirement  of  the  Statute  4th 
Ann.,  ch.  16,  that  the  truth  of  dilatory  pleas  be  proved  by 
affidavit. 


OF  NEW  ASSIGNMENT. 

The  generality  of  statement  allowed  in  the  Declaration  in 
some  actions,  especially  the  action  of  trespass,  under  the  old 
system  of  Pleading,  sometimes  did  not  sufficiently  guide  the 
Defendant  to  the  proper  cause  of  complaint.  The  Defend- 
ant, therefore,  in  his  plea,  answered  a  different  matter  from 


KULES   OF   PLEADING.  119 

the  one  tlie  Plaintiff  sued  liim  for.  For  example : — Tlie 
Plaintiff  had  been  assaulted  by  the  Defendant  twice,  and  the 
first  assault  was  justifiable,  having  been  committed  in  self- 
defence  ;  but  the  second  was  committed  without  any  legal 
excuse.  The  Plaintiff  sues  the  Defendant  for  the  secqnd 
assault ;  but  as  time  is  not  material  in  such  an  action,  though 
necessary  sometimes,  as  in  this  instance,  to  distinguish  one 
assault  from  another,  the  Declaration  states  the  time  in  so 
general  a  way  as  not  to  indicate  to  which  of  the  two  assaults 
the  action  refers.  The  Defendant,  therefore,  supposes,  or 
pretends  that  he  supposes,  that  the  first  is  the  assault  for 
which  he  is  sued,  and  pleads  self-defence.  Now,  as  the  gen- 
erality of  the  Declaration  had  led  the  Defendant  into  a  mis- 
take, if  the  Plaintiff  should  traverse  the  Defendant's  plea  of 
self-defence,  the  Defendant  would  have  the  right,  under  the 
issue  joined  upon  such  traverse,  to  presume  that  it  was  the 
assault  committed  in  self-defence  which  he  was  sued  for,  and 
consequently  to  prove  the  self-defence.  As  then,  the  Plain- 
tiff could  not  traverse  the  Defendant's  plea  with  safety,  and 
having  no  ground  for  demurrer,  or  for  pleading  in  confes- 
sion and  avoidance,  he  is  compelled  to  correct  the  mistake 
occasioned  by  the  generality  of  his  declaration,  by  a  new 
pleading,  and  declare  that  he  sued  not  for  the  first  but  the 
second  assault.  This  pleading  is  called  a  new  assignment. 
The  matter  new  assigned  must  be  consistent  with  the  decla 
ration,  and  not  varying  from  or  more  extensive  than  the 
trespasses  therein  enumerated,  or  those  which  the  Defendant 
has  in  his  plea  professed  to  answer ;  for  a  new  assignment 
is  merely  to  avoid  the  effect  of  the  plea  which  can  only 
operate  upon  the  trespasses  thereby  admitted.  The  new 
assignment  always  occurs  in  answer  to  a  plea,  and  is,  there 
fore,  in  the  nature  of  a  replication  repeating  the  declaration, 
and  distinguishing  the  true  ground  of  complaint  from  that 
covered  by  the  plea. 

The  Act  of  Simplification  has  three  sections  on  the  sub- 
ject of  new  assignment.     They  are  as  follows ; 


120  RULES   OF    PLEADING. 

105.  "Where  the  Defendant  pleads  an  evasive  plea,  either 
as  to  the  whole  or  a  part  of  the  cause  of  action  set  forth  in 
the  Declaration,  the  Plaintiff"  may  avoid  the  effect  of  such 
plea,  by  restating  his  cause  of  action  with  more  particularity, 
consistently  however  with  the  more  general  statement  set 
forth  in  the  Declaration. 

106.  "One  new  assignment  only  shall  be  pleaded  to  any 
number  of  pleas  to  the  same  cause  of  action ;  and  such  new 
assignment  shall  be  consistent  with  and  confined  by  the 
particulars,  if  any,  delivered  in  the  action,  and  shall  state 
that  the  Plaintiff  proceeds  for  causes  of  action  different  from 
all  those  which  the  pleas  profess  to  justify,  or  for  an  excess 
over  and  above  what  the  defences  set  up  in  such  pleas  jus- 
tify or  both. 

107.  "No  plea,  which  has  already  been  pleaded  to  the  De- 
claration, shall  be  pleaded  to  such  new  assignment  except 
a  plea  in  direct  denial,  unless  by  leave  of  the  Court ;  and 
such  leave  shall  only  be  granted,  upon  satisfactory  proof 
that  the  repetition  of  such  plea  is  essential  to  a  trial  of  the 
merits." 

These  sections  modify  the  old  law  of  new  assignment,  in 
a  way  which  it  is  not  necessary  to  mention.  But  it  is  hoped 
that  the  simplified  pleadings  will  obviate  the  necessity,  in 
practice  for  new  assignments. 


RULES  WHICn  MAKE   THE    ISSUE  A  CERTAIN 

ONE. 

We  have  already  considered  the  general  rules  for  framing 
the  machinery  of  pleadings.  We  will  now  consider  other 
rules  that  are  auxiliary,  in  making  the  issue  certain.  The 
rules,  which  we  have  considered,  do,  of  course,  contribute  to 
certainty  in  the  issue:  but  still  these  auxiliary  rules  are 


RULES   OF   PLEADING.  121 

necessary  to  point  more  specifically,  to  some  matters  of 
"wliich  pleadings  are  composed,  tliat  could  not  be  well  stated 
in  tlie  more  general  rules  which  we  have  considered. 
"When  it  is  said,  that  the  issue  must  be  certain^  the  meaning 
is,  that  it  must  be  particular  or  specific  as  opposed  to  undue 
generality.  Now,  all  the  rules  for  framing  the  machinery 
of  pleading,  tend  to  develope  the  question  in  controversy, 
by  means  of  that  machinery,  in  a  specific  shape.  But  as 
these  general  rules  cannot  point  out  the  degree  of  specifica- 
tion with  which  the  question  should  be  developed,  it  be- 
comes necessary,  to  lay  down  special  rules  in  regard  to 
certain  facts  that  must  be  particularised  in  different  cases, 
in  order  to  produce  a  certain  issue.  These  rules  we  will 
now  proceed  to  consider. 


OF  NAMES  OF  PERSONS. 

The  rules,  of  this  auxiliary  kind,  of  which  I  shall  first 
treat,  relate  to  the  names  of  persons,  whether  parties  to  an 
action  or  only  mentioned  in  a  pleading.  It  is,  of  course,  in- 
dispensable to  all  just  legal  procedure  that  the  parties  meant 
to  be  affected  by  it,  should  be  designated  so  as  to  be  identi- 
fied as  the  proper  persons.  At  the  same  time,  it  is  expe- 
dient, that  the  mere  misnomer  of  a  person,  whether  party  to 
the  action  or  not,  should  not  be  entirely  fatal  to  an  action : 
provided  the  person  intended  to  be  reached  by  the  process 
is  actually  reached,  and  it  can  be  made  so  to  appear  to  the 
Court.  And  it  is  further  expedient,  that  all  errors  of  mis- 
nomer be  corrected  in  the  speediest  and  least  expensive  mode 
consistent  with  justice.  The  Act  of  Simplification  has  de- 
vised three  rules  to  carrying  into  effect  these  views.  They 
are  contained  in  the  following  sections : 

108.  "  The  Declaration  as  well  as  the  Summons  shall  set 
forth  accurately  the  Christian  names  and  surnames  of  both 
parties,  and  the  Christian  names  and  surnames  of  persons 


122  RULES   OF   PLEADING. 

not  parties  to  the  action :  but  wliere  the  name  of  a  person, 
not  a  party  to  the  action,  shall  not  be  known,  an  allegation 
of  the  fact  shall  be  sufficient." 

109.  "Whenever  a  party  shall  be  sued  by  a  wrong  Chris- 
tian name  or  surname,  or  both,  upon  affidavit  or  other  proof 
to  the  satisfaction  of  the  Court,  at  any  time  before  trial,  that 
the  writ  or  process  has  been  served  upon  the  person  intended 
to  be  sued,  the  Court  shall,  upon  motion,  direct  any  writ, 
declaration  or  other  pleading,  or  any  entry,  to  be  amended, 
by  inserting  therein,  the  true  name  of  the  party,  on  such 
terms  as  the  Court  shall  deem  fit. 

110.  "  A  mistake  in  the  name  of  either  party  to  the  action, 
or  of  a  person  not  a  party  to  the  action,  may  be  objected  to 
as  a  variance,  at  the  trial." 

It  is  seen  that,  by  the  hundreth  and  tenth  section,  a  mis- 
take in  the  name  of  either  party  to  the  action  or  of  a  person 
not  a  party,  may  be  objected  to,  at  the  trial,  as  a  variance. 
The  doctrine  of  variance  is  this.  The  proof  offered,  may  in 
some  cases  wholly  fail  to  support  the  affirmative  of  the  issue ; 
but  in  others,  it  may  fail  by  a  disagreement  in  some  particu- 
lar point  or  points  only  between  the  allegation  and  the  evi- 
dence. Such  disagreement  is  called  a  variance;  and  when 
upon  a  material  point  is  as  fatal  to  the  party,  on  whom  the 
proof  lies,  as  a  total  fliilure  of  evidence;  the  jury  being 
bound,  upon  variance^  to  find  the  issue  against  him.  Thus 
the  doctrine  of  variance,  under  the  old  system  of  pleading, 
applied  to  the  mistake  of  the  name,  of  a  person  not  a  party 
to  the  suit,  but  not,  of  o,  party  to  the  suit.  A  mistake  in  the 
name  of  a  party  to  the  suit,  could  only  be  objected  to  by  a 
plea  in  abatement.  The  Simplifying  Act  has  made  the  mis- 
take in  both  cases  a  variance,  at  the  trial. 

When  a  Plaintiff  discovers,  at  the  trial,  a  variance,  he 
usually  takes  the  course  of  avoiding  a  verdict,  by  volunta- 
rily submitting  to  a  judgment  of  non-suit;  and  for  that  pur- 


RULES   OF   PLEADING.  123 

pose,  "he  is  supposed  to  absent  himself  from  tlie  Court,  Sucli 
judgment  does  not  prevent  liim  from  bringing  another 
action ;  but  a  verdict  would  bar  him  forever. 

Misnomer,  however,  will,  under  the  rules  of  the  two  pre- 
vious sections,  be  almost  always  corrected  before  trial ;  and 
a  judgment  of  non-suit  avoided. 


OF  TIME. 

As  every  transaction  must  occur,  and  every  object  exist, 
in  time,  it  was  very  natural  that  the  time  should  be  stated 
in  pleadings.  But  as  time,  in  most  matters  of  litigation,  does 
not  pertain  to  the  merits  of  the  controversy,  it  soon  became 
a  rule,  that,  generally,  one  time  might  be  stated  and  another 
proved ;  if  the  time  be  laid  under  a  videlicit,  which  was  a 
technical  indication  that  the  true  time  was  not  intended  to 
be  stated.  The  Act  of  Simplification,  as  we  have  seen  in 
the  fifty-third  section,  declares  that  time  shall  not  be  stated 
when  it  is  immaterial.  It  therefore,  left  time,  when  it  is 
material,  as  under  the  old  law ;  and  has  embodied  the  rule 
in  the  hundreth  and  eleventh  section  in  these  words : 

111,  "When  Time  forms  a  material  point  in  the  merits 
of  a  cause,  the  day,  month  and  year,  or  when  there  is  a  con- 
tinuous act,  the  period  of  its  duration,  must  be  alleged,  and 
proved  as  laid.  "When  Time  is  not  material,  it  need  not  be 
mentioned,  and  if  mentioned,  need  not  be  proved," 


OF  PLACE. 

Every  matter  of  litigation  must  occur  or  exist  in  Place 
as  well  as  Time ;  and  therefore  Place,  like  Time,  would  be 
naturally  stated  in  pleadings.  Originally,  every  fact  was 
laid  in  the  Place  where  it  was  really  done ;  and  therefore 
the  written  contracts  bore  date  at  a  certain  Place.     The  ori- 


124  RULES   OF    PLEADING. 

ginal  object  of  tlius  designating  the  Place,  or  laying  a  venue 
as  it  was  called,  was  to  determine  the  Place  from  which  the 
jury  should  be  summoned  to  try  the  issue  in  fact ;  as  the 
jury  in  the  earliest  times  consisted  of  persons  who  were  cog- 
nizant, of  their  own  knowledge,  of  the  fact  in  dispute,  and 
were  witnesses  giving  testimony,  and  not,  as  now,  triers  of 
fact  on  the  testimony  of  others.  Soon  a  distinction  was 
taken,  that  in  transitory,  matters,  where  Place  formed  no 
material  part  of  the  issue,  one  Place  might  be  alleged,  and 
another  proved,  just  as  in  the  case  of  Time.  The  Simplify. 
ing  Act  therefore,  taking  advantage  of  all  the  mutations  in 
the  doctrine  of  Venue  which  a  long  practice  of  Courts  has 
wrought,  has  dispensed  with  the  statement  of  Place  when 
not  a  material  part  of  the  issue,  and  made  it  necessary  to 
allege  it  only  when  it  forms  a  part  of  the  substance  of  the 
issue.  The  Eule  regulating  the  matter  is  contained  in  the 
hundreth  and  twelfth  section  in  these  words  : 

112.  "It  shall  be  necessary  to  allege  a  Place  only  when 
it  is  descriptive  of  the  subject  matter  of  the  action,  and 
forms  a  part  of  the  substance  of  the  issue ;  and  it  must  be 
proved  as  laid." 


OF  QUALITY  OR  KIND. 

"We  have  heretofore  with  a  view  to  their  Pleadings 
considered  causes  of  action  founded  on  breaches  of  con- 
tract. We  will  now  consider  causes  of  action  founded  on 
injuries  to  property,  with  a  view  of  showing  how  the  prop- 
erty must  be  described  in  pleading. 

When  property  is  involved,  in  any  degree  in  litigation, 
it  is,  of  course,  necessary  to  designate  it.  The  most  com- 
prehensive legal  designations  are  real  or  personal.  But  this 
is  not  sufficient  to  identify  it.  It  must  be  so  described  as 
to  distinguish  it  from  all  other  real  or  personal  property. 

As  regards  personal  property,  this  is  done  by  specifying 


RULES   OF   PLEADING.  125 

its  kind.  Tlie  Act  of  Simplification  therefore  uses  tlie  word 
kind^  as  more  appropriate  than  the  word  quality  used  by  the 
old  law  ;  the  word  q^iality  being  commonly  used  to  signify 
degree  of^  excellence,  and  not  specific  difference,  as  it  is  required 
to  signify  in  this  instance.  As  the  distinctions  of  hind  are 
matter  of  common  and  not  legal  designation,  the  exigencies 
of  pleading  need  no  other  rule  on  the  subject,  than  that 
personal  property  shall  be  described  by  its  kind,  as  wheat, 
rye,  household  furniture,  &c. 

But  real  property  requires  to  be  described  in  a  different 
mode.  Its  place  or  location  is  its  fundamental  element  of 
designation.  It  can  be  accurately  designated  only  by  arti- 
ficial or  imaginary  lines  separating  it  from  all  other  real 
property.  But,  as  in  actions  for  injuries  to  real  property, 
it  is  oftener  the  mere  fact  of  the  injury,  or  the  title,  than 
the  lines  which  comes  into  dispute,  it  is  expedient  that  the 
plaintiff  should  not  be  confined  to  a  description  by  courses 
and  distances,  but  be  permitted  to  use  other  easier  modes  of 
description  when  he  pleases  to  do  so.  Accordingly  the  law 
has  always  allowed  it.  And  the  Plaintiff  might  under  the 
old  law,  in  his  declaration,  describe  the  property  by  the 
general  name  of  his  close.  This  indefiniteness  of  description, 
upon  the  plea  of  liberum  ienementum  being  pleaded  by  the 
Defendant,  compelled  the  Plaintiff  to  new  assign,  and 
describe  the  property  more  accurately.  This  circuity,  and 
the  consequent  delay,  ought  to  be  prevented  by  compelling 
the  Plaintiff  to  describe  the  property  in  the  declaration  so 
as  to  identify  it.  This,  the  Act  of  Simplification  does ;  and 
the  section  is  so  worded  as  to  embrace  injuries  to  chattel  as 
well  as  to  other  interests  in  land  or  real  property;  for 
though,  in  law,  chattel  interests  in  land  are  considered  per- 
sonal property,  yet  their  nature  is  real,  and  therefore,  they 
must  come  under  the  rule  describing  real  property.  The 
Act  of  Simplification  regulates  the  description  of  personal 
property  by  one  section,  and  that  of  real  pro})crty  by 
another.     These  sections  are  as  follows : 


126  RULES   OF   PLEADING. 

113.  "Ill  actions  for  injuries  to  goods  and  chattels,  their 
kind  or  species  shall  be  alleged  in  the  declaration,  and 
proved  as  laid. 

114.  "  In  actions  for  breaking  the  Plaintiff's  close,  or  for 
an  injury  to  real  property,  the  Plaintiff  shall  describe  the 
property,  and  when  the  injury  is  to  an  incorporeal  herdita- 
ment,  shall  describe  the  property  in  respect  of  which  the 
right  is  claimed,  (as  well  as  the  right  itself,)  in  his  declara- 
tion, either  by  the  name  by  which  the  property  is  patented, 
or  by  its  abuttals,  or  by  its  courses  and  distances,  or  by  any 
name  which  it  has  acquired *by  reputation,  or  by  some  other 
description  certain  enough  to  identify  it." 


OF  QUANTITY  AND  YALUE. 

Under  the  old  system  of  pleading,  when  the  declaration 
alleged  any  injury  to  goods  and  chattels,  or  any  contract 
relating  to  them,  their  quantity  and  value  must  be  stated. 
And  the  quantity  and  value  must  be  specified  by  the  ordi- 
nary measures  of  extent,  weight  or  capacity  ;  as  three  bushels 
of  tvheat,  of  the  value  of  three  dollars. 

But  these  requirements  were  not  always  insisted  upon 
even  as  law ;  for  two  j^cic^^s  of  flax,  and  a  library  of  books 
have  been  held  to  be  sufficient  specification  of  quantity  in 
declarations  in  trover ;  and  on  an  action  for  breaking  the 
the  Plaintiff's  close  with  beasts  and  eating  his  peas,  a  decla- 
ration not  showing  the  quantity  of  peas,  has  been  held  good ; 
"  because  nobody  can  measure  the  peas  beasts  can  eat."  And 
in  actions  of  debt  and  indebitatus  assumpsit  for  goods  sold, 
the  quality,  quantity  or  value  of  the  goods  sold  was  never 
specified.  Therefore,  even  Under  the  old  system  of  plead- 
ing, it  was  only  where  quantity  and  value  formed  a  part  of 
the  substance  of  the  issue  that,  strictly,  it  was  necessary  to 
state  them  in  pleading.  The  Act  of  Simplification  there- 
fore, in  the  fifty-third  section,  requires  that  quantity  and 


EULES   OF    PLEADING.  127 

value  when  immaterial  shall  not  be  stated.  But  where  they 
form  a  part  of  the  substance  of  the  issue,  they  are  required 
to  be  stated,  by  the  hundreth  and  fifteenth  section  as  follows : 

115.  "Where  quantity  forms  a  part  of  the  substance  of 
the  issue,  it  must  be  alleged,  and  specified  with  reference  to 
the  ordinary  measures  of  extent,  weight  or  capacity.  And 
where  value  forms  a  part  of  the  substance  of  the  issue,  it 
must  be  alleged  and  specified  by  the  current  coin  of  the 
United  States." 

116.  "  And  a  verdict  shall  not  be  for  a  larger  quantity  or 
value  than  is  alles^ed." 


OF  TITLE. 

Under  the  head  of  Quality  or  Kind,  I  showed  how,  in 
actions  for  injuries  to  property  both  personal  and  real,  the 
property  must  be  described  in  order  to  make  its  identity 
certain.  I  will  now  show  to  what  extent^  and  Tiow  the  title 
to  the  property  must  be  alleged. 

There  are  many  different  degrees  of  right  or  interest  in 
property,  personal  or  real,  from  mere  possession  to  absolute 
ownership.  Each  of  these  degrees  of  interest  can  be  injured. 
Where  an  action  is  brought  for  an  injury  to  property,  it  is 
not  necessary  to  disclose  any  fuller  title  than  will  sustain  the 
right  which  has  been  injured.  If  the  Plaintiff  has  a  mere 
possession,  he  can  sustain  an  action  against  a  wrongdoer ; 
and  therefore  in  such  action  a  Plaintiff  need  only  allege 
title  of  possession,  even  where  he  has  a  fee-simple. 

When  a  title  of  possession  is  alleged  with  respect  to 
goods  and  chattels,  the  statement  will  be  supported  by  proof 
of  any  kind  of  presentinterest  in  the  m,  whether  that  interest 
be  temporary  and  special,  as  that  of  a  carrier  or  finder,  or 
absolute,  as  that  of  an  owner.  So  where  a  title  of  possession 
is  alleged  in  respect  of  corporeal  or  incorporeal  hercdita- 


128  RULES   OF    PLEADING. 

ments,  it  will  be  sufficiently  maintained  by  proving  any 
kind  of  estate  in  possession,  whether  fee-simple,  for  life,  for 
term  of  years  or  otherwise.  It  is  therefore  expedient  in 
cases  of  injury  to  property  to  allege  only  title  of  possession ; 
unless  the  injury  be  of  an  interest  in  remainder  or  reversion, 
then,  of  course,  it  must  be  laid  accordingly.  And  in  respect 
of  goods  and  chattels  the  title  can  be  laid  in  possession  even 
where  there  never  has  been  actual  possession ;  as  the  pro- 
perty of  the  goods  and  chattels  draws  to  it  the  possession 
in  law. 

The  form  of  alleging  title  of  possession  in  respect  of  goods 
and  chattels  is,  either  to  allege  that  they  were  "  the  goods 
and  chattels  of  the  Plaintifl:","  or,  that  he  "was  laAvfully  pos- 
sessed of  them  as  his  own  property."  These  forms  of  alle- 
gation are  equivalent ;  and  any  one  having  a  right  to  the 
possession  of  goods  and  chattels  may  allege  them,  to  be  his 
property,  against  a  wrongdoer.  And  in  an  action  of  Reple- 
vin for  the  specific  recovery  of  the  goods  and  chattels,  the 
allegation  of  mere  title  of  possession  is  sufficient,  and  has 
always  been  the  mode  of  allegation  in  that  action. 

The  form  of  alleging  title  of  possession  in  respect  of  real 
property,  where  the  action  is  for  breaking  the  Plaintiff's 
close  is,  "certain  land  of  the  Plaintiff,"  &c.;  or  where  the 
action  is  for  obstructing  his  right  of  way,  "  was  possessed  of 
land,  &c.,  and  was  entitled  to  a  way  from  said  land,"  &c. 
These  forms  of  allegation  have  been  prescribed  in  the  Forms 
given  in  the  Simplifying  Act,  as  we  shall  see. 

Having  considered  the  case  where  a  party  alleges  title  in 
himself,  I  will  now  consider  the  case  where  he  alleges  title 
in  his  adversary.  It  is  a  general  rule,  that  it  is  not  necessary 
to  state  the  title  of  an  adversary  with  as  much  precision,  as 
one's  own  title.  It  must,  however,  be  stated  sufficiently  to 
show  liability  in  the  adversary. 

In  showing  the  liability  of  the  party  charged,  it  is  in  most 
cases  sufficient  to  allege  title  of  possession ;  which  may  be 
done  in  the  same  forms  as  when  alleging  the  same  title  in 
the  party  pleading.   And  if  the  interest  of  the  party  charged 


RULES   OF    PLEADING.  129 

be  in  the  remainder  or  reversion,  the  title  must  he  laid 
accordingly.  In  an  action  for  rent  against  an  assignee  of  a 
term  of  j^ears,  it  would  be  necessary  to  allege  that  he  was 
in  possession  as  assignee. 

There  was  an  exception  under  the  old  system  of  pleading, 
to  the  doctrine  that  it  is  sufficient  to  allege  mere  title  of 
possession  against  a  wrongdoer.  In  replevin  for  cattle 
taken  damage  feasant,  if  the  Defendant  pleaded  that  he  is 
possessed  of  a  messuage  and  entitled  to  common  of  pasture 
as  appurtenant  thereto,  and  that  he  took  the  cattle  damage 
feasant,  such  mere  allegation  of  possession  was  not  sufficient. 
He  was  compelled  to  allege  a  fuller  title  to  the  messuage 
and  common  of  pasture. 

There  was  no  reason  of  practice  for  such  doctrinal  excep- 
tion. For,  if  the  Defendant  had  brouo-ht  an  action  for  the 
very  same  damage  which  he  now  pleads  the  cattle  were 
committing,  the  allegation  of  mere  title  of  possession  would 
have  been  sufficient  to  sustain  his  action.  Though,  perhaps, 
no  such  case  can  occur  in  Maryland,  still,  out  of  caution, 
the  Simplifying  Act,  as  we  shall  presently  see,  has  abolished 
the  exception. 

"Where  a  person  entitled  to  a  right  of  way  or  other  incor- 
poreal hereditament  over  the  land  of  another,  in  respect  of 
his  possession  of  another  piece  of  land,  sues  for  an  injury  to 
such  right  of  way,  or  other  incorporeal  hereditament,  he  is 
allowed,  as  I  have  already  stated,  to  allege  mere  title  of 
possession  of  the  laud,  and  the  consequent  right  of  way. 
But  if  he  should  be  sued  by  the  person  over  whose  land  the 
way  runs  for  a  trespass,  and  he  should  justify  under  his 
right  of  way,  he  was,  under  the  old  system  of  pleading, 
compelled  in  his  plea  to  allege  his  precise  title  to  the  land 
in  respect  of  which  the  right  of  way  was  claimed ;  and  also 
the  particular  ground  of  his  right,  as  whether  he  claimed  by 
grant,  by  prescription,  by  express  reservation,  or  by  some 
other  mode.     This  rendered  the  pleading  on  the  part  of  the 

Defendant  difficult  and  various. 

9 


130  RULES   OF   PLEADING. 

The  conditions  of  fair  trial  do  not  require  the  right  to  be 
stated  more  precisely  in  a  plea  than  in  a  declaration.  If 
the  general  statement  in  the  declaration  gives  sufficient 
description  of  the  right,  it  will  do  so  in  the  plea.  The  title 
■will  be  involved  in  a  denial  of  the  injury  coupled  Avith  the 
general  allegation  in  the  declaration.  Therefore  the  same 
allegations  in  the  plea  when  denied  by  the  replication,  will 
also  involve  the  title.  The  Simplifying  Act  has,  therefore, 
in  actions  relative  to  incorporeal  hereditaments,  made  the 
plea  a  counterpart  of  the  declaration,  in  cases  like  those 
just  mentioned. 

The  remarks  which  we  have  made  on  the  subject  of  title 
are  in  connection  with  the  following  sections  of  the  Act  of 
Simplification : 

117.  "When  in  pleading,  an 3^  right  or  authority  is  set  up 
in  respect  of  property,  personal  or  real,  some  title  to  the 
property  must  be  alleged  in  the  party,  or  in  some  other 
person  from  whom  he  derives  his  authority.  And  if  a  party 
be  charged  with  any  liability  in  respect  of  property,  per- 
sonal or  real,  his  title  to  that  pro]3erty  must  be  alleged,  and 
proved  as  laid. 

118.  "In  no  case  shall  it  be  necessary  to  allege  title  more 
particularly  than  is  sufficient  to  show  the  right  or  authority 
claimed,  or  the  liability  charged. 

119.  "In  the  action  of  replevin  for  cattle  taken,  damage 
feasant,  it  shall  be  sufficient  for  the  Defendant  to  allege 
mere  title  of  possession. 

120.  "  In  an  action  for  breaking  the  Plaintiff's  close,  when 
the  Defendant  justifies  under  a  right  of  way  or  other  incor- 
poreal right  over  or  in  the  Plaintiff's  close,  it  shall  not  be 
necessary  for  the  Defendant,  in  his  plea,  to  set  forth  his  full 
title  to  another  close,  in  respect  of  which  he  claims  such 
right ;  but  he  may  plead  generally,  that  he  was  possessed 


RULES   OF    PLEADING.  131 

of  his  close,  and  had  the  right  claimed,  for  the  more  con- 
venient occupation  of  the  close ;  as  a  Plaintiff  is  allowed  to 
do  in  his  declaration,  when  suing  for  an  injury  to  such 
incorporeal  rights." 


OF  DERIVATION  OF  TITLE. 

Under  the  old  system  of  pleading,  if  the  title  was  an 
absolute  one,  as  a  fee  simple,  it  was  sufficient  to  allege  a 
seisin  in  fee  sim'ple^  without  showing  the  derivation  or  com- 
mencement of  the  estate.  But  if  the  title  was  less  than  a 
fee  simple,  it  was  necessary  to  state  its  commencement,  that 
is,  to  show  the  derivation  of  the  title  from  the  last  seisin  in 
fee.  The  Act  of  Simplification  modifies  these  Rules,  and 
enacts : 

121.  "It  shall  not  be  necessary  to  allege  the  commence- 
ment of  either  a  particular  or  of  a  superior  estate,  unless  it 
be  essential  to  the  merits  of  the  cause." 

As  this  section  implieS;  it  is  sometimes  essential  to  the 
merits  of  a  cause  to  show  the  derivation  of  the  title,  both  of 
a  fee  simple,  and  a  less  estate.  Thus :  If  an  action  be 
brought  by  the  lessor  against  the  lessee  on  the  covenants  of 
the  lease,  the  Plaintiff  need  allege  no  title  to  the  premises 
demised;  because  a  tenant  is  estopped  from  denying  his 
landlord's  title.  But,  on  the  other  hand,  a  tenant  is  not 
bound  to  admit  title  to  any  greater  extent  than  might 
authorize  the  lease ;  and,  therefore,  if  the  action  be  brought 
not  by  the  lessor  himself,  but  by  his  heir,  executor,  or 
assignee,  the  title  of  the  lessor  must  be  alleged ;  in  order  to 
show  that  the  reversion  is  now  legally  vested  in  the  Plain- 
tiff in  the  character  in  which  he  sues.  And  if  he  sues  as 
heir,  he  must  allege  that  the  lessor  was  seised  in  fee;  for 
the  tenant  is  not  bound  to  admit  that  he  was  seized  in  fee; 
and  unless  he  was  so,  the  Plaintilf  cannot  claim  as  heir. 


*132  ".-       TIULES   OF    PLEADING.  •    ^    • 

But  if  lac  su?s  as  executor  or  assignee  of  a  Icssoi-j  who  ha4 

:  been  entitled  for  a  terin  of  years,  thougli  it  is  uecessarj'-,  in 

the  declaration  to  •etate  the  title  of  the  lessor,  in  order  to 

show  that  the  Plaintiff  is  entitled  to  maintain 'the  action  as 

•his  representative  .or  assignee,  yet,  as  .the  title  is,  -ih.  this 

case,  alleged  by  way  of  inducement  only  (the  action  being 

mainly  founded  on  the  lease  i'tsclf,)  the  particular  estate,  for 

years,  may  be  alleged  in  the  lessor,  even'  under  the  old 

pleading,  without  showing  its  comnrejiGement;  ^  ' .  ■■ 

The  Act.  of  Simplification  -has  two'  oiher  Hcctions  under 
•      »  .»    . 

this  "head  bf  derivation,of  titlo. ' .  Tlaey  arc  as  follows : 
-•  ♦,'»■'' 

122..  "  Where'a'i^arty  claims  by  inheritance,  cither  imme- 
diate or*  n^ediat'e,.  he  shall  allege  how  he  is  heir,  as  son, 
nepjiew,  or  otherwise.  . 

123.  "  Where  a  part}^  claims  by  conveyance,  he  may  state 
it  according  to  its  legal  effect  or  name." 

The  first  of  these  sections  may  be  illustrated  by  the  case 
given  above,  of  the  party  sning  as  the  heir  of  a  lessor.    In 
such  case,  he  must  show,  whether  he  inherits  as  son,  or 
nephew,  or  as  the  case  may  be.     The  latter  section  may  be 
illustrated  by  the  following  example.     In  an  action  for  a 
trespass,  if  the  Defendant  pleads  that  E.  F.,  being  seised  in 
fee,  demised  to-  Gr.  H.,  under  whose  command  the  Defendant 
justifies  the  trespass  on  the  land ;  and  tlie  Plaintiff  in  his 
Eeplication  admits  E.  F.'s  seisin,  but  sets  np  a  subsequent 
title  in  himself  to  the  same  land,  in  fee  simple,  prior  to  the 
alleged  demise,  he  must  show  the  derivation  of  the  fee  from 
E.  F.  to  himself,  by  conveyance  antecedent  to  the  lease  under 
which  G.  H.  claims.     Now,  the  Plaintiff,  in  alleging  the 
conveyance  of  the  fee  from  E.  F.  to  himself,  may  simply 
state  that  E.  F,  conveyed  the  land  to  him,  in  fee  siviple,  ante- 
cedent to  the  lease  to  G.  H.     And  it  is  observable,  that  the 
Defendant,  in  alleging  the  lease  to  G.  H.,  simply  makes  use 
of  the  word  demised.     In  pleading  a  conveyance  for  life  or 


•     •  ..;     .  RULES   OF    PLEADING-.    '     ■'  133 

for  years,  the  tetjlinical  form  is  to  allege  it^as  a  demise  for  life 
or  for  -years.  But  the  description  of  if  as  a  cpnveycvn(5efor  life 
or  for  years,  especially  since  the  simplification  of  Convey- 
ancing in  Maryland,  is  the  most  consistent,  ■  and  equally 
correcrform  of  allegation. 


EULES   WHICH  MAKE    THE    ISSUE    A- "SINGLE 
;■    '  '    ■;  •'.     ONE.  ■  ^  * 

We  haves'een,  that  uAdei:  -ihe  Ac^of  Simplificat,ipn  any 
number  of  causes  of  action  maybe,  sited  on 'fin  the  same 
action.  We  have  also  seenj  that  the  Defendant  ma^y  ^^lead 
any  number  of  defences  'to  the  declaration  or*  any  subse- 
quent pleading  of  the  Plaintiff";  and'that  the  "Plaintiff  may 
plead  in  answer  to  the  plea  or  any  subsequent  pleading  of 
the  Defendant,  as  many  several  matters  as  he  may  deem 
necessary.  Yet  there  is  a  rule,  that  pleadings  must  not  be 
double ;  and  the  object  of  the  rule  is  defined  to  be,  the 
avoidance  of  several  issues.  Now,  it  is  manifest,  that  if  several 
causes  of  action  be  sued  on  in  the  same  action,  and  several 
pleas  be  pleaded,  that  several  issues  will  necessarily  be 
formed.  It  therefore  behooves  us,  to  explain  the  meaning 
of  the  Pule  against  duplicity  or  doubleness  in  pleading. 

The  rule  applies  both  to  the  declaration  and  sul3sequent 
pleadings.  Its  meaning,  with  respect  to  the  declaration,  is 
that  it  must  not,  in  support  of  a  single  demand,  allege  several 
distinct  matters,  by  any  one  of  which  the  demand  is  suffi- 
ciently supported.  As,  where  the  Plaintiff  declared  in  an 
action,  that  the  Defendant  was  indebted  to  him  in  a  certain 
sum,  for  nourishing  one  E.  L.  at  the  request  of  the  Defend- 
ant, which  the  Defendant  promised  to  pay ;  and  also,  that 
the  Defendant  promised  to  pay  so  much  as  he  reasonably 
deserved  to  have,  for  nourishing  the  said  E.  L.  during  the 
same  time.  This  declaration  is  bad  for  duplicity  ;  for  there 
are  two  promises,  one  to  pay  a  certain  sum,  and  the  (jther 


.134  RULES    OF    TLEADING. 

to  pay  a  quantum  meruit,  cither  of  wliicli  will  support  tlie 
demand  of  the  Plaintifl". 

"With  respect  to  the  pleadings  subsequent  to  the  declara- 
tion, the  meaning  of  the  rule  is,  that  none  of  them  must 
contain  several  distinct  answers  to  that  which  preceded  it. 
Duplicity  in  a  plea  may  be  thus  exemplified.  In  an  action 
for  breaking  a  close,  and  depasturing  the  herbage  with 
cattle,  if  the  Defendant  pleads  that  A.  had  a  right  of  com- 
mon, and  B.  also  a  right  of  common  in  the  close,  and  that 
the  Defendant,  as  their  servant,  and  by  their  command 
entered  and  turned  in  the  cattle  in  exercise  of  their  rights 
of  common,  the  plea  is  bad  for  duplicity,  because  the  title 
of  either  one  or  other  of  the  commoners,  and  the  authority 
derived  as  his  servant,  would  have  alone  constituted  a  suf- 
ficient answer  to  the  declaration.  Of  duplicity  in  the 
rejilication  the  following  is  an  instance :  The  Plaintiff  de- 
clared for  breaking  and  entering  his  stable,  cutting  asunder 
a  beam,  and  throwing  down  the  tiles  of  the  roof.  The 
Defendant  justified  as  the  servant  of  H.  G.,  and  pleaded 
that  H.  G.  was  seised  of  a  wall,  in.  his  demesne  of  fee,  and 
because  the  beam  was  placed  in  the  wall  of  the  said  H.  G. 
without  his  consent,  the  Defendant,  as  his  servant,  in  order 
to  remove  this  nuisance,  did  enter  the  stable,  and  cut  the 
beam  as  near  to  the  wall  as  he  could,  doing  as  little  damage 
as  possible,  and  thereby  the  tiles  w^ere  thrown  down.  The 
Plaintiff  replied,  traversing  that  the  wall  was  11.  G.'s ;  and 
then  further  pleaded,  that  the  Defendant,  of  his  own  wrong, 
did  throw  down  the  tiles,  for  the  cutting  the  beam  aforesaid. 
This  Eeplication  is  bad  for  duplicity,  because,  as  the  first 
traverse  is  a  complete  answer,  the  second  makes  the  Eepli- 
cation double. 

The  rule,  in  its  terms,  points  to  douhleness  only ;  as  if  it 
prohibited  only  the  use  of  two  allegations  and  answers :  but 
its  meaning  extends  to  the  case  of  more  than  two ;  because 
if  two  will  produce  the  evil  of  several  issues,  three  or  more 
will  aggravate  the  evil. 


RULES    OF    PLEADING.  135 

The  object  of  tlie  rule  against  duplicity,  being  to  enforce 
a  single  issue  upon  a  single  subject  of  claim,  admits  several 
issues  wliere  the  claims  are  distinct.  The  declaration  there- 
fore may,  in  support  of  several  demands,  allege  as  many  dis- 
tinct matters  as  are  respectively  applicable  to  each.  So  the 
plea,  though  it  must  not  contain  several  answers  to  the  whole 
of  the  declaration  may  nevertheless  make  distinct  answers 
to  sucb  facts  of  it  as  relate  to  different  matters  of  claim  or 
complaint.  Thus,  in  the  example  which  I  have  given  of 
duplicity  in  a  plea,  if  the  case  be  a  little  varied,  and  the 
Defendant,  being  charged  with  putting  five  beasts  on  the 
common,  pleads  that  A.  and  B.  had  respectively  rights  of 
common  there,  and  that  he,  as  the  servant  of  A.  put  in  two 
of  the  beasts  in  respect  o^his  common  right,  and,  as  the  ser- 
vant of  B.  put  in  three,  in  respect  of  las  common  right,  there 
would  no  longer  be  duplicity ;  for  he  pleads  the  several 
titles,  not  as  several  answers  to  the  same  subject  of  claim  or 
complaint,  but  as  distinct  answers  to  different  matters  of 
complaint  arising  in  respect  of  different  cattle.  So  in  the  re- 
plication  and  other  subsequent  pleadings.  Thus,  if  an  action 
be  brought  for  trespasses  in  closes  A.  and  B.  and  the  De- 
fendant pleads  a  single  matter  of  defence  applying  to  both 
closes,  the  Plaintifl:"  may  in  his  replication,  give  one  answer 
as  to  so  much  of  the  plea  as  applies  to  close  A.  and  another 
answer  as  to  so  much  of  the  plea  as  applies  to  close  B.  But 
neither  of  the  matters  thus  alleged  in  answer  to  such  parts 
of  the  declaration,  as  relate  to  different  claims  must  be  such 
as  would  alone  be  a  sufficient  answer  to  the  whole  declara- 
tion. Thus,  if  an  action  be  brought  on  two  promissory 
notes,  the  Defendant  may  plead  as  to  one,  payment,  and  as 
to  the  other,  duress,  yet  if  he  pleads  as  to  one,  a  release  of 
all  actions,  and  as  to  the  other,  duress,  it  will  be  double ;  for 
the  release  alone  is  a  sufficient  answer  to  both  notes. 

If  there  be  several  Defendants,  the  rule  against  duplicity 
does  not  compel  each  of  them  to  make  the  same  answer  to 
the  declaration.    Each  is  at  liberty  to  plead  such  plea  as  be 


136  RULES    OF    PLEADING. 

may  tliink  proper  for  liis  own  defence ;  and  tliey  may  either 
join  in  the  same  plea  or  sever,  at  their  discretion.  But  if 
the  Defendants  have  once  united  in  the  plea,  they  cannot 
afterwards  sever  at  the  rejoinder  or  other  subsequent  plead- 
ing. 

Where  in  respect  either,  of  several  subjects,  or  of  several 
Defendants,  a  severance  has  thus  taken  place  in  the  plead- 
ing, this  may  of  course  lead  to  a  corresponding  severance  in 
the  whole  subsequent  series;  and,  finally,  to  the  production 
of  several  issues.  And  where  there  are  several  issues,  they 
may  respectively  be  decided  in  favor  of  different  parties ; 
and  the  judgment  will  follow  the  same  division. 

A  pleading  subsequent  to  the  declaration  will  be  double 
that  contains  several  answers,  whether  they  be  of  the  same 
kind  or  not.  Thus,  if  it  contains  several  matters  in  ahate- 
ment^  or  several  matters  in  har;  or  one  matter  in  abatement  and 
another  in  bar,  it  will  be  double.  Or  by  containing  several 
matters  in  confession  and  avoidance,  or  several  matters  by  way 
of  traverse;  or  by  combining  a  traverse  Avith  a  matter  in  con- 
fession and  avoidance,  it  will  be  rendered  double.  But  a 
matter,  will  not  make  a  pleading  double,  that  is  pleaded  only 
as  a  necessary  inducement  to  another  allegation,  though  the 
matter  of  inducement,  if  pleaded  as  an  answer;  would  be  of 
itself  a  good  defence. 

The  Rule  against  duplicity  being  therefore,  to  enforce  a 
single  issue  upon  a  single  subject  of  claim,  but  admitting 
several  issues  upon  several  distinct  subjects  of  claim,  it  is 
necessary  to  explain  the  mode  of  pleading,  where  several 
distinct  subjects  of  claim  are  joined  in  the  same  action. 

Under  the  old  system  of  pleading,  where  several  causes  of 
action  were  joined  in  the  same  suit,  it  was  necessary  to  use 
what  were  called,  several  counts  in  the  declaration.  These 
several  counts  were  different  sections  of  the  declaration,  each 
containing  a  formal  statement  of  a  separate  cause  of  action, 
and  each  constituting  a  good  declaration  by  itself,  so  that  if 
the  Plaintiff  sustained  himself  upon  either  count  he  would 


RULES    OF    PLEADING.  137 

be  entitled  to  judgment  upon  the  cause  of  action  set  forth  in 
it,  thougli  he  failed  as  to  tlie  others. 

This  use  of  several  counts,  when  applied  to  distinct  causes 
of  action,  is  entirely  consistent  with  the  rule  against  dupli- 
city, as  the  object  of  that  rule,  as  we  have  seen,  is  to  prevefit 
several  issues  in  respect  of  one  demand  only ;  and  not  to 
prevent  several  issues  where  there  are  several  demands. 
But  a  practice  grew  up,  at  a  very  early  period  in  England, 
and  it  was  legitimated  in  Maryland,  of  allowing  several 
counts,  where  there  were  really  not  distinct  claims ;  but  the 
several  counts  were  only  so  many  different  modes  of  stating 
the  same  cause  of  action.  This  took  place,  when  the  pleader, 
in  drawing  his  declaration,  having  set  forth  his  case  in  one 
view,  is  doubtful  whether,  as  so  stated,  it  may  not  be  insuf- 
ficient in  law,  or  incapable  of  proof  in  point  of  flict ;  and  at 
the  same  time  perceives  another  mode  of  statement,  by  which 
his  difficulty  may  perhaps  be  avoided.  He  therefore,  inserts 
the  second  form  of  statement  in  the  shape  of  a  second  count, 
in  the  same  manner  as  if  he  were  proceeding  for  a  separate 
cause  of  action ;  and  if  he  saw  a  still  further  mode  of  allega- 
tion that  might  be  available,  he  added  other  counts ;  thus 
giving,  in  practice,  a  great  variety  of  counts  in  respect  of 
the  same  cause  of  action.  Thus  where  a  person  has  ordered 
goods  of  another,  and  an  action  is  brought  against  him  for 
the  price,  the  circumstances  maybe  such  as  to  raise  a  doubt 
whether  the  transaction  ought  to  be  described  as  one  of 
goods  sold  and  delivered  or  of  ivork  and  lahor  done.  In  this 
case  two  counts,  would  be  used,  setting  forth  the  claim  both 
ways ;  in  order  to  secure  a  verdict,  at  all  events,  upon  one  of 
them.  Whether,  however,  the  subjects  of  the  several  counts 
were  really  distinct  or  identical,  they  must  always  pwyort  to 
be  founded  on  distinct  causes  of  action ;  and  this  was  indi- 
cated, by  inserting  in  each  count  after  the  first,  such  words 
as  "other,"  "the  farther  sum,"  all  indicating  a  separateness 
and  difi'erence. 

The  Defendant  on  his  part  could  demur  to  the  whole  de- 
claration, or  plead  a  single  plea  to  the  whole ;  or  demur  to 


138  RULES    OF    TLEADING. 

one  couut,  and  plead  to  another ;  or  plead  a  several  plea  to 
each  count,  or  several  pleas  to  distinct  parts  of  the  same 
count;  and,  by  the  Statute  of  Anne,  several  pleas  to  the 
whole  declaration  or  to  each  count ;  for  the  Defendant  may- 
have  several  distinct  answers  to  give  to  the  same  claim  or 
cause  of  action.  And  as  the  Plaintiff,  in  the  case  of  several 
counts  found  it  convenient  to  vary  the  mode  of  stating  the 
same  subject  of  claim,  so  the  Defendant,  under  the  form  of 
pleading  distinct  matters  of  defence,  stated  variously,  in  va- 
rious pleas,  the  same  defence ;  either  by  presenting  it  in  an 
entirely  new  view,  or  by  omitting  merely,  in  one  plea,  some 
circujustances  i^lleged  in  another.  But  the  several  defences 
must  each  be  pleaded  as  a  oiew  or  further  plea,  with  a  formal 
commencement  and  conclusion  as  such ;  so  that  it  would  be 
improper  to  incorporate  several  matters  in  ojie  j^lea. 

When  several  pleas  are  pleaded,  either  to  different  mat- 
ters, or  to  the  same  matter,  the  Plaintiff  may,  according  to 
the  nature  of  his  case,  either  demur  to  the  whole,  or  demur 
to  one  plea  and  reply  to  another,  or  make  a  several  replica- 
tion to  each  plea,  or,  by  the  89th  section  of  the  Act  of  Sim- 
plification, make  several  replications  to  each  plea;  and  in 
the  three  last  cases  the  result  may  be  a  corresponding  sev- 
erance in  the  subsequent  pleadings,  and  the  production  of 
several  issues.  But  whether  one  or  more  issues  be  produced 
if  the  decision,  whether  in  law  or  fact,  be  in  the  Defendant's 
favor,  he  is  entitled  to  judgment  in  respect  of  that  subject 
of  demand  or  complaint,  to  which  the  successful  plea  re- 
lates ;  and,  if  it  were  pleaded  to  the  whole  Declaration,  to 
judgment  generally,  though  the  Plaintiff  should  succeed  as 
to  the  other  pleas. 

The  Act  of  Simplification  has  the  two  following  sections 
in  respect  of  singleness  in  pleading : 

12-i.  "Any  number  of  facts  constituting  one  cause  of 
action,  or  one  defence,  or  one  reply,  or  au}'-  other  pleading, 
may  be  combined ;  but  each  cause  of  action,  and  each  de- 


KULES    OF    PLEADING.  139 

fence,  and  eacli  reply,  sliall  be  stated  in  a  separate  paragraph, 
and  shall  be  numbered. 

125.  "  If  each  cause  of  action,  or  each  defence,  or  each 
reply,  or  other  pleading  shall  not  be  stated  in  a  separate 
paragraph,  and  numbered,  the  Court,  or  the  Judge,  at  any 
time  after  such  pleading  is  filed,  and  before  it  is  pleaded  to, 
may,  upon  suggestion  in  writing,  filed  in  the  cause,  stating 
such  defect  in  the  pleading,  and  a  copy  of  the  suggestion 
being  served  upon  the  party  so  pleading  defectively,  or  his 
attorney,  order  the  defective  pleading  to  be  corrected  at  the 
costs  of  the  party  so  pleading  defectively.  But  if  the  oppo- 
site party  plead  to  such  defective  pleading,  such  formal  defect 
shall  thereby  be  cured." 

These  sections,  it  is  obvious,  no  not  change,  in  any  mate- 
rial point,  the  rule  against  duplicity.  The  docti-ines  which 
I  have  stated  in  exposition  of  that  rule,  are  still  applicable 
under  the  simplified  system  of  pleading.  The  only  change 
effected  by  these  sections  is  in  the  mode  or  form  of  pleading ; 
and  in  the  mode  or  form  of  correcting  the  defect  of  duplicity. 
Under  the  old  system,  each  cause  of  action  must  be  stated  in 
a  separate  count,  and  every  defence  in  a  separate  plea  with 
a  formal  commencement  and  conclusion.  Under  the  sim- 
plified pleading,  it  is  only  necessary  to  state  in  a  separate 
paragraph,  and  to  number  each  cause  of  action,  and  each 
plea ;  and  this  paragraphing  and  numbering  will  sufllciently 
designate  them  as  separate  and  distinct.  And  the  same  cause 
of  action,  or  the  same  defence,  or  the  same  reply,  may  be 
stated  in  various  ways ;  and  if,  in  separate  paragraphs  and 
numbered,  will  be  as  separate  and  distinct,  as  thoy  would 
have  been  under  the  old  system,  if  stated  in  separate  counts 
and  pleas  in  due  technical  form. 

Tlic  defect  of  du[)licity,  or  not  ])aragraphing  and  nvnn- 
bcring  the  causes  of  action  or  dcl'cnccs,  is,  under  tlic  last  of 
these  sections,  to  be  corrected  upon  suggestion  in  the  nature 


140  RULES   OF    TLEADING. 

of  a  motion ;  whereas,  it  "was  corrected  upon  special  demur- 
rer under  the  old  system.  But,  if  the  opposite  party  plead 
to  such  defective  pleading,  the  defect  is  thereby  cured,  just 
as  it  was  under  the  old  system. 

I  have  now  passed,  in  review,  all  the  rules  for  construct- 
ing the  Simplified  Pleadings.  All  these  rules  conduce  to 
form  pleadings  which  end  in  single  issues  involving  the 
merits  of  causes  of  litigation. 


OF  JUDGMENT. 

It  is  the  duty  of  the  Court,  upon  a  point  of  law  being 
raised  by  demurrer,  to  give  the  proper  judgment.  So,  upon 
the  facts  being  found  by  a  verdict  or  shown  in  any  other 
legal  mode,  the  Court  is  bound  to  pronounce  the  proper 
judgment.  The  judgment  is  entered  in  such  form  as  is 
legally  appropriate  to  the  particular  case.  Under  the  old 
system  of  pleading,  there  was  one  form  for  entering  the 
judgment  in  debt  on  a  sealed  instrument,  and  a  different  form 
for  a  judgment  in  case  on  a  note  not  under  seal.  But  as  the 
Act  of  Simplification,  as  we  have  seen,  has  abolished  all 
forms  of  action,  so  that  debt  and  damage  may  be  sued  for  in 
the  same  action,  and  joined  in  the  same  declaration,  the  Act 
further  authorises  that,  when  a  Plaintiff  recovers  a  sum  of 
money,  the  amount  shall  be  awarded-  to  him  without  any 
distinction  between  debt  and  damage.  The  two  sections  of 
the  Act,  on  the  subject,  are  as  follows : 

126.  "In  all  actions  where  the  Plaintiff  recovers  a  sum  of 
money,  the  amount  to  which  he  is  entitled  may  be  awarded 
to  him  by  the  judgment  generally,  without  any  distinction 
being  therein  made  as  to  whether  such  sum  is  recovered  by 
way  of  debt  or  damages. 

127.  "The  form  of  all  judgments  shall  be  merely  a  state 


RULES   OF   PLEADING.  141 


ment,  in  common   language,  of  tlie  award  of  tlio   Court, 
without  regard  to  the  forms  of  action  heretofore  existing." 


JUDGMENT  NON  OBSTANTE  VEREDICTO. 

Tliough  a  judgment  against  a  verdict  can  hardly  ever  be 
req-uired,  jet  the  Act  of  Simphiication  has  prescribed  the 
condition  on  which  such  a  judgment  can  be  rendered.  The 
Plaintiff"  in  a  case  coming  within  the  condition  of  the  section 
of  the  Act  would  move  for  a  judgment,  to  be  given  to  him, 
without  regard  to  the  verdict  obtained  by  the  Defendant.  The 
section  of  the  Act  is  as  follows : 

128.  "  Whenever  the  plea  is  such  as  to  show  to  the  Court 
that  the  Defendant  is  not  entitled  to  judgment  upon  the 
merits,  and  the  issue  thereon  be  found  for  the  Defendant, 
judgment  shall  be  given  for  the  Plaintiff",  non  obstante  vere- 
dicto.''^ 

EEPLEADER. 

Where  the  unsuccessful  party,  on  examination  of  the 
pleadings,  conceives  that  the  issue  joined  was  not  taken  on 
a  point  proper  to  decide  the  action,  the  practice,  though  of 
rare  occurrence,  is  to  move  for  a  repleader.  Either  of  the 
parties  may,  from  misapprehension  of  law,  or  oversight, 
have  passed  over  without  demurrer,  a  statement  on  the  other 
side  immaterial  and  insufficient  in  law ;  and  an  issue  in  fact 
may  have  been  ultimately  joined  on  such  immaterial  state- 
ment, and  so  the  issue  will  be  immaterial,  though  the  parties 
have  made  it  the  point  in  dispute  between  them.  In  such 
cases,  therefore,  the  Court,  not  knowing  for  whom  to  give 
judgment,  will  award  a  repleader^  thereby  ordering  the  parties 
to  plead  de  novo,  for  the  purpose  of  obtaining  a  better  issue. 
(Sec  7th  Ilarr.  k  John.  p.  272.)  The  Act  of  Simplification 
has  prescribed  the  following  section  in  regard  to  i\'pleader  : 


142  RULES   OF    TLEADING. 

129.  "  Whenever  the  issue,  joined  and  tried,  shall  be  an 
immaterial  one,  the  Court  shall  award  a  repleader ;  and  the 
parties  shall  begin  to  replead  at  the  first  fault  which  pro- 
duced the  immaterial  issue.  And  the  pleadings  in  such 
case,  shall  be  in  the  forms  hereinbefore  prescribed  for  plead- 
ino-s  in  general,  and  shall  be  substituted  for  the  defective 
pleadings." 


ABATEMENT. 

I  have  heretofore  directed  attention  to  pleas  in  bar,  as 
they  are  called,  which  are  substantial  and  conclusive  answers 
to  the  action.  They  either  deny,  as  I  have  shown,  all  or 
some  essenticil  part  of  the  averments  of  the  declaration,  or, 
admitting  them  to  be  true,  allege  new  facts  which  obviate  or 
repel  their  legal  effect. 

There  is  a  class  of  pleas  called  dilatory  pleas.  They  are 
either  to  the  jurisdiction  of  the  Court ;  or  in  suspension  of 
the  action ;  or  in  abatement  of  the  writ.  A  plea  to  the 
jurisdiction  of  the  Court,  shows  that  another  Court  has 
jurisdiction  of  the  matter,  and'charges  that  the  present  one 
has  not.  A  plea  in  suspension  of  the  action,  shows  some 
ground  for  not  proceeding,  at  present,  with  the  action.  A 
plea  in  abatement  shows  some  ground  for  abating  or  quash- 
ing the  writ. 

These  pleas  are  pleaded  before  pleas  in  bar,  in  the  order . 
of  practice :  but  they  so  seldom  occur,  that  they  are  post- 
poned to  this  later  consideration.  Of  pleas  to  the  jurisdic- 
tion of  the  Court,  and  pleas  in  suspension  of  the  action,  I 
shall  say  nothing ;  they  are  so  rare  in  practice,  as  not  to  fall 
within  the  purpose  of  this  treatise. 

Pleas  in  abatement  relate  cither  to  the  person  of  the 
Plaintiff  or  Defendant,  showing  some  personal  disability  to 
sue  or  to  be  sued  ;  or  to  the  want,  showing,  for  example,  that 
in  an  action  on  a  joint  contract,  all  the  joint  contractors  are 
not  named  as  Defendants,  but  that  one  or  more  is  omitted. 


RULES    OF    PLEADING.  143 

Under  tlie  old  system  of  pleading,  tlie  commencement  and 
conclusion  of  a  plea  were  always  in  sucli  form  as  to  indicate 
whether  it  was  designed  as  a  dilatory  plea  or  a  plea  in  bar. 
And  if  matter  which  goes  in  bar  were  pleaded,  with  a  com- 
mencement and  conclusion  in  abatement,  it  was  a  plea  in 
abatement ;  but  if  it  only  concluded  in  abatement,  it  was  a 
plea  in  bar.  If  a  plea,  containing  matter  in  ahatement,  con- 
cluded in  bar,  it  was  a  plea  in  bar.  And  if  a  plea,  begin- 
ning in  bar,  contained  matter  in  abatement,  and  concluded  in 
abatement,  it  was  a  plea  in  5a?-. 

There  was,  too,  difficulty  in  determining  when  a  plea  in 
abatement  should  only  conclude  with  a  prayer  of  judgment, 
and  when  it  should  both  commence  and  conclude  with  a 
prayer  of  judgment;  and  also  when  the  prayer  of  judgment 
should  be  of  the  writ  only ;  and  when  of  the  writ  and  the 
declaration.  At  least,  such  is  the  state  of  the  authorities. 
The  Act  of  Simplification  has  endeavored  to  remedy  these 
and  other  difficulties  in  pleas  in  abatement,  by  the  following 
sections : 

130.  "  It  shall  not  be  necessary  to  use  any  prayer  of  judg- 
ment in  any  plea  in  abatement.  Xor  shall  it  be  necessary, 
in  any  plea  in  abatement,^  to  crave  oyer  of  any  instrument 
of  writing  on  which  the  suit  is  brought,  nor  to  insert  it  in 
the  plea. 

131.  "No  formal  defence,  and  no  formal  conclusion,  shall 
be  required  in  pleas  in  abatement.  They  shall  commence 
in  the  form  hereinbefore  prescribed  for  pleas  in  bar,  or  to 
the  like  effect. 

132.  "In  a  plea  in  abatement  for  the  non-joinder  of  a  co- 
Dcfcndant  or  co-Defendants,  it  shall  be  necessary  to  allege, 
and  to  prove,  that  the  persons  mentioned  as  not  joined  are 
still  living,  and  are  residing  in  the  county  in  which  the  suit 
is  brought,  or  the  City  of  Baltimore,  if  the  suit  be  brought 
there. 


1-1:4  RULES   OF    PLEADING. 

133.  "  All  defects  in  pleas  in  abatement  shall  be  cor- 
rected, upon  motion,  as  in  other  pleadings  under  this  code." 

It  is  necessary  that  a  plea  in  al)atement  correct  the  mis- 
take of  the  Plaintiff,  so  as  to  enable  him  to  avoid  the  same 
objection  in  bringing  a  new  suit. 

The  power  of  pleading  several  matters  does  not  extend  to 
dilatory  pleas. 


MOTIONS. 

As  demurrer,  for  mere  formal,  defects  in  a  pleading,  has 
been  abolished,  the  motion  has  been  substituted  as  a  more 
summary  mode  of  reaching  any  formal  defects  wliich  may 
appear  in  the  simplified  pleadings.  The  motion  has  been 
always  a  mean  for  drawing  the  attention  of  the  Court  to 
certain  defects  in  pleadings,  which  the  Court  would  have 
rectified  in  a  summary  way.  "  In  some  cases  the  Courts 
will,  on  motion,  order  superfluous  matter  to  be  struck  out 
of  the  pleadings,  and  if  there  be  any  vexation,  will  make 
the  party  inserting  it  pay  the  costs  of  the  application," 
(1st  Chit.  Plead.  211.)  To  this  e:!itent  did  the  Courts  act,  in 
rectifying  defects  in  the  old  pleadings,  upon  motion.  The 
Simplifying  Act  has  therefore  only  enlarged  the  power  of 
the  Court,  in  rectifying  pleadings  upon  motion.  I  have 
passed  in  review  all  the  provisions  indicating  the  motion  as 
the  proper  mode  of  calling  the  attention  of  the  Court  to 
the  different  defects  specified  in  the  provisions.  It  only 
therefore  remains,  to  call  attention  to  the  provision  of  the 
Simplifying  Act  which  prescribes  the  rule  in  regard  to 
motions.     It  is  as  follows  : 

134.  "Every  motion  required  by  this  code  shall  be  in 
writing,  and  shall  assign  reasons ;  but  no  particular  form 
shall  be  necessary." 


RULES   OF    PLEADING.  115 


GENERAL  PROVISIONAL  RULES. 

As  it  is  impossible  to  foreknow  all  tlie  possible  exigencies 
of  administrative  justice,  rules  cannot  be  prescribed  for  all 
cases  tliat  may  arise  in  practice.  So,  in  reforming  an  old 
system  of  rules,  the  reform  can  liardly  be  so  complete  as  to 
embrace  every  needed  change ;  therefore  the  Simplifying 
Act  has  prescribed  two  sections :  by  the  first  of  which,  the 
simplification  may  be  extended  by  the  Courts,  upon  the 
analogies  of  the  changes  made,  to  matters  that  may  not 
have  been  simplified ;  and  by  the  second,  the  laws  and 
usages  of  the  State  relating  to  pleading  and  practice,  that 
are  not  in  antagonism  to  the  Simplification,  and  can  aid  its 
provisions,  are  expressly  continued  in  force.  The  provisions 
are  as  follows : 

135.  "Any  matter  of  pleading,  which  shall  not  come 
within  the  special  provisions  of  this  code,  and  for  which 
there  is  not  now  some  rule,  which  does  not  .conflict  with  the 
principles  and  rules  of  this  code,  shall  be  provided  for  upon 
the  analogies  of  the  provRions  Avhich  seem  to  bear  most 
upon  the  matter;  and  of  this  the  Court  shall  judge,  when- 
ever any  such  pleadings  shall  have  been  framed  in  a  cause, 
and  the  question  is  raised  by  motion.  And  if  the  Court 
shall  determine  such  pleading  to  be  erroneously  framed,  it 
shall  have  it  corrected ;  and  in  such  case  the  costs  of  the 
amendment  shall  be  in  the  discretion  of  the  Court. 

136.  "  All  laAVS,  so  for  as  they  are  inconsistent  with  the 
provisions  of  this  code,  are  hereby  repealed.  The  laws  and 
usages  of  this  State,  relating  to  pleading,  practice  and  pro- 
ceedings in  civil  actions,  so  far  as  they  arc  not  inconsistent 
with  the  provisions  of  this  code,  and  as  far  as  the  same  may 
operate  in  aid  of  those  provisions,  or  to  supply  some  omitted 

case,  arc  hereby  continued  in  force." 

10 


146  RULES   OF    TLEADING. 

By  the  first  of  these  sections,  it  will  be  observed,  that  the 
mode  by  which  the  analogies  of  the  simplified  pleadings 
shall  be  made  the  basis  for  change  in  any  matter  which  may 
happen  not  to  be  simplified,  is  by  the  pleading  being  framed 
for  some  case  in  actual  practice,  and  the  propriety  of  the 
pleading,  excepted  to,  and  brought  to  the  consideration  of 
the  Court  for  its  adjudication.  In  many  of  the  attempts  at 
reform,  in  other  countries,  the  judges  have  been  empowered 
to  make  changes,  at  their  discretion,  in  furtherance  of  those 
begun  by  the  legislature.  This  has  proved  to  be  an  imprac- 
ticable mode  of  reform.  The  provision  of  the  Act  of  Sim- 
plification seems  to  be  more  efl&cient,  and  at  the  same  time 
entirely  conservative  of  the  spirit  of  the  simplification  which 
has  been  effected  by  the  Act  itself 

It  is  by  the  last  of  these  two  sections  that  I  felt  author- 
ized to  incorporate,  in  this  treatise,  the  great  body  of  the 
elementar}^  doctrines,  and  the  rules  of  pleading,  as  long 
practised  in  this  State,  with  the  provisions  of  the  Act  of 
Simplification.  These  provisions  assume  the  existence  of 
the  very  doctrines  and  rules  which  I  have  expounded  and 
illustrated.  The  treatise,  therefore,  however  imperfectly 
executed,  is  a  consistent  whole,  and  expressly  declared 
legitimate  by  the  hundred  and  *thirty-sixth  section  of  the 
Simplifying  Act,  which  I  have  given  as  the  closing  section 
of  this  chapter  of  my  treatise. 


FORMS   OF   PLEADINGS.  147 


CHAPTEE  III. 

FORMS   OF   PLEADIXGS. 

The  Eiiles  of  Pleading,  as  I  have  sliown,  require  the 
question  in  controversy  to  be  developed  in  a  specific  shape : 
but  the  degree  of  specification  required,  no  rule  can  desig- 
nate, except  in  a  general  way.  Hence,  established  forms, 
for  boih  the  Plaintiff's  and  Defendant's  pleadings,  are  the 
best  guides  to  the  pleader ;  as  they  furnish  examples  of  the 
requisite  degree  of  specification.  If,  for  example,  it  be  said 
that,  the  declaration  must  state  every  thing  that  is  of  the  essence 
of  the  cause  of  action^  and  that  is  of  the  essence  of  the  cause  of 
action^  without  whicJi^  judgment  cannot  he  given,  (6  Harr.  and 
John.  53,)  it  gives  but  obscurely,  the  substance  of  the  decla- 
ration required  in  a  given  case,  in  comparison  with  the 
form  of  the  declaration  established  for-the  case.  S(5,  when 
it  is  said,  of  the  pleadings  subsequent  to  the  declaration,  each 
must  he  an  answer  to  the  ichole  of  what  is  adversely  alleged^  we 
do  not  apprehend  the  meaning  of  the  rule  as  clearly  as  when 
we  see  it  embodied  in  the  forms  of  the  various  pleadings  to 
which  it  is  applicable.  The  Act  of  Simplification,  therefore, 
has  prescribed  forms  of  the  most  usual  pleadings  constructed 
according  to  the  rules  which  I  have  expounded.  And  in 
order  to  supply  the  deficiency  of  the  Act  in  this  respect,  I 
have  added  other  forms  constructed  according  to  the  require- 
ments of  the  Act,  and  justified,  as  we  shall  see,  by  the  hun- 
dredth and  thirty-seventh  section  of  the  Act,  as  equally 
legitimate  as  those  contained  in  the  Act  itself,  if  they  conform 
to  the  requirements  of  the  Act. 

In  all  actions,  which  can  arise  under  the  simplified  pro- 
cedure, it  is  necessary  to  file  a  "^declaration :  even  a  confes- 

*  There  arc  three  classes  of  cases,  iu  which  it  is  not  uecessary  to  file 


148  FORMS   OF   PLEADINGS. 

sion  of  judgment  will  not  cure  the  omission.  (3  Ilarr.  & 
McIIen.  389;  lb.  408;  4  Harr.  &  McHen.  351.) 

Under  the  old  system  of  pleading,  the  form  of  the  decla- 
ration was  determined  by  the  form  of  the  original  writ.  But 
under  the  new  system  of  pleading,  only  the  writs  of  replevin 
and  of  ejectment,  determine  the  form  of  the  declaration. 
The  writ  of  summons  does  not  at  all  influence  the  form  of 
the  declaration.  This  wTit  applies  to  all  cases  except  to 
replevin  and  ejectment.  Therefore,  if  a  summons  be  issued, 
a  declaration  for  any  cause  of  action,  except  those  for  which 
replevin  and  ejectment  are  the  prescribed  remedies,  may  be 
filed ;  and  when  the  declaration  is  filed,  if  it  does  not  meet 
the  case  of  the  Plaintiff,  it  may  be  amended  so  as  to  embrace 
any  of  the  various  causes  of  action  for  which  assumpsit,  case, 
covenant,  debt  or  dower  might  under  the  old  system  of 
pleading  be  brought.  Under  the  old  system  of  pleading,  as 
the  form  of  the  original  writ  was  the  same  in  assumpsit  and 
case,  the  declaration  could  be  amended  from  one  of  these 
actions  to  the  other ;  though  the  one  be  for  a  breach  of  con- 
tract, and  the  other  for  a  wrong  independent  of  contract. 
(1  Hafr.  &  John.  297.)  But,  as  under  the  old  system,  a 
count  on  contract,  and  one  on  a  wrong,  as  assumpsit  and 
trover^  could  not  be  joined,  the  declaration  could  only  be 
amended  from  one  of  these  cases  to  the  other,  by  a  substitution 
of  one  count  for  the  other.  But,  as  now  all  causes  of  action, 
with  the  exception  of  those  for  which  replevin  and  ejectment 
are  the  prescribed  remedies,  can  be  joined,  and  coimts  for  all 
can  be  stated  together,  a  declaration  can  always  be  amended 
by  merely  adding  the  necessary  count  or  counts.  If^  for 
instance,  the  cause  of  action  alleged  be  only  the  non-payment 
of  a  promissory  note,  and  it  should  turn  out  that  the  cause 
of  action  was  the  non-payment  of  a  single  bill,  or  a  breach 

a  declaration: — 1.  Scire  Facias;  2.  Attachment,  4  Harr.  Sc  Joliu. 
18.5 ;  3.  Where  a  case  is  referred  to  arbitrators,  and  an  award  made, 
and  judgment  on  the  award,  3  Harr.  &  McHen.  388.  But  the  pro- 
cedure of  the  cases  is  not  embraced  in  the  Act  of  Simplification  :  nor 
consequently  in  this  treatise. 


FORMS   OF   PLEADINGS.  149 

of  covenant,  or  any  otlier  on  contract  or  not  on  contract,  the 
declaration  can  be  changed  so  as  to  meet  the  case,  hj  adding 
the  proper  cause  of  action  or  count,  as  the  causes  of  action 
might  have  been  at  first  joined  in  the  declaration.  Ilence  is 
manifest  the  comprehensiveness,  and  flexibility  and  minute- 
ness of  application,  of  the  simplified  pleading. 

If  a  writ  of  replevin  or  of  ejectment  be  issued,  the  decla- 
ration cannot  be  amended  to  any  other  case ;  because  these 
actions  are  for  the  specific  recovery  of  personal  and  real 
property,  and  can  never  be  unintentionally  misapplied  by  a 
Plaintiff,  and  therefore  should  be  inflexibly  fixed  to  one 
cause  of  action. 

Under  the  simplified  pleading  there  are  two  classes  of  de- 
clarations or  counts — the  one  general^  the  other  special.  The 
same  classification  of  counts  existed  under  the  old  system  of 
pleading.  "We  have  seen,  that  it  was  a  rule  of  the  ancient 
system  of  pleading,  that  pleadings  must  specify  quality^ 
quantity  and  value,  thereby  rendering  the  declaration  or 
count  special.  But  this  rule  never  applied  to  the  action  of 
debt  for  goods  sold  or  for  work  and  labour,  &c. ;  a  more 
general  form  of  declaration  having  been  always  allowed  in 
this  action.  In  the  latter  part  of  the  seventeenth  century, 
there  grew  into  practice  counts,  called  indelitatus  assumpsit, 
framed  upon  the  model  of  the  declaration  in  debt  on  simple 
contract,  in  which  the  quality,  quantity  or  value  of  the  goods 
sold  is  never  specified.  This  form  of  count  was  gradually 
extended  to  all  cases  of  a  mere  money  demand,  founded 
upon  simple  contract,  either  express  or  implied.  These 
couifts  became  of  such  frequent  use,  that  they  acquired  the 
name  of  common  counts.  The  Act  of  Simplification  has 
retained  these  common  or  general  counts  in  all  their  ancient 
significance ;  but  has  simplified  the  declaration,  by  prohibit- 
iug  the  statement  of  a  promise  as  Avas  done  in  the  old  decla- 
ration when  in  fact  there  was  none ;  and  has  substituted  a 
new  plea  in  the  place  of  the  general  issue,  non  assumpsit ;  as 
has  been  already  shown. 

The  first  twelve  statements  of  causes  of  action  contained 


150  FORMS   OF   PLEADINGS. 

in  tlic  Act  of  Simplification,  are  tliese  general  counts  in  a 
simplified  form.  Tliese  twelve  counts,  as  will  be  seen,  state 
tlie  causes  of  action  in  tlie  same  form  of  beginning,  "  for 

money  payable  by to for."     When  a  set  form 

of  words  will  express  a  general  idea  in  respect  of  many  dif- 
ferent causes  of  action,  it  is  expedient  to  employ  it  as  a  com- 
mon form.  It  allows  tlie  declaration  to  be  put  into  a  more 
simple  and  succinct  form ;  especially  when  several  different 
causes  of  action  or  counts  are  joined  in  the  same  declaration. 
It  will  be  observed,  that  all  the  twelve  causes  of  action  or 
counts  can  be  joined  in  the  same  declaration,  by  employing 
the  set  form  of  words  in  the  statement  of  the  first  cause  of 
action  or  count  only.  In  such  a  form  the  declaration  is 
more  easily  scanned  and  vinderstood,  than  when  a  different 
set  of  words  are  employed,  to  denote  the  indebtedness  or 
liability,  in  stating  each  cause  of  action. 

But  as  great  as  the  advantage  of  using  this  set  of  words 
is,  in  frximing  and  also  in  understanding  the  declaration,  a 
still  greater  advantage  is  gained,  by  being  thereby  enabled 
to  frame  a  plea  in  one  general  form  which  will  answer  all 
the  twelve  causes  of  action,  and  as  many  more  of  the  same 
kind  as  may  be  joined  in  the  declaration.  By  this  form  of 
the  declaration,  the  first  plea  in  the  Act  of  Simplification, 
"  That  he  never  was  indebted  as  alleged,"  answers  all  the 
twelve  causes  of  action  distinctly,  by  a  direct  denial ;  and  in 
entire  conformity  to  the  principles  and  rules  relative  to  the 
direct  traverse  heretofore  expounded.  The  direct  traverse 
imports  a  denial  in  the  words  of  the  allegation  traversed ; 
and  in  order  to  avoid  prolixity,  it  is  sometimes  better  ]?ot  to 
deny  in  the  words  of  the  allegation  traversed.  The  plea 
under  consideration  is  an  instance  of  the  kind ;  and  it  can  be 
used,  without  the  least  danger  of  giving  it  the  generality  of 
the  general  issue  in  debt  on  simple  contract,  nil  debit.  The 
general  issue,  nil  debit,  involves  a  double  construction,  that 
he  never  oived  the  debt,  or,  that  he  has  jpaid  it.  Thus,  by  this 
general  issue,  the  distinction  between  a  traverse  and  a  con- 
fession and  avoidance  was  abrogated.     For  nil  debit  (does 


FORMS   OF   PLEADINGS.  151 

not  oive,)  is  adapted  to  any  kind  of  defence  that  tends  to 
deny  an  existing  debt.  Therefore,  not  only  a  defence  deny- 
ing an  original  indebtedness,  but  the  defences  of  release, 
satisfaction,  arbitrament  and  many  others  are  applicable  to 
such  a  plea.  But  the  plea  under  consideration  does  not 
admit  of  a  double  construction.  It  throws  the  defence  back 
to  the  original  indebtedness  ;  and  consequently,  neither  pay- 
ment, nor  any  thing  in  confession  and  avoidance,  can  be 
given  in  evidence  under  the  issue  formed  by  it.  The  denial 
is,  in  such  a  form,  as  not  to  let  in  testimony  of  matters  sub- 
sequent to  the  original  indebtedness. 

But  while  the  plea  narrows  the  issue,  and  preserves  the 
distinction  between  a  traverse  and  a  confession  and  avoid- 
ance, the  statement  of  the  causes  of  action  in  these  general 
counts  have  just  the  same  import  they  had  in  the  indebitatus 
assumpsit  counts.  All  causes  of  action  remain  as  they  were 
before  the  Simplification ;  and  the  simplified  statements  of 
them  have  the  same  legal  import.  The  counts,  for  money 
lent;  for  money  paid ;  for  nnoney  had  and  received;  and  for 
money  found  due  on  accounts  stated^  have  just  the  same  scope 
and  are  sustained  by  just  the  same  proofs,  as  under  the  old 
system  of  pleading.  These  counts,  and  the  proofs  of  them, 
have  been  so  established  in  judicial  construction ;  and  the 
one,  for  money  had  and  received,  imports  in  law  so  much  more 
than  the  words  literally  express,  that  it  would  have  pro- 
duced great  confusion  if  an  attempt  had  been  made  to 
change  their  established  significance.  These  four  counts, 
therefore,  with  the  new  plea  adapted  to  them,  can  be  used 
in  e-wery  instance  where  they  were  applicable,  under  the  old 
system  of  pleading,  in  their  form  of  indebitatus  assumpsit. 
And  though  the  new  general  plea  excludes  much  evidence 
which  could  have  been  adduced  by  the  Defendant,  under 
the  plea  of  non  assiimpsit,  and  also  the  evidence  which  the 
Plaintiff  could  adduce  to  rebut  it :  yet  the  evidence  in  sup- 
port of  the  causes  of  action  are  not  at  all  changed.  Under 
these  counts,  for,  instance,  a  promissory  note  may  be  given 
in  evidence,  as  between  drawer   and   payee,  or   endorser 


152  FORMS   OF   PLEADINGS. 

and  liis  immediate  endorsee,  (7  Ilarr.  &  Johns.  32  ;  4  Harr. 
k  Johns.  535,  336 ;)  and  this,  even  wlien  it  is  the  note  of  a 
firm  of  which  the  Defendant  is  a  partner.  (2  Harr.  &  G  ill, 
274.)  And  under  the  connt  for  money  had  and  received, 
the  Plaintiff  can  recover  wherever  the  Defendant,  npon  the 
circumstances  of  the  case,  ought,  by  the  ties  of  natural  jus- 
tice and  equity,  to  refund  or  not  to  retain  the  money.  (2 
Burr.  E.  1012 ;  1  Chit.  Plea.  305-8.)  So,  under  the  count 
on  an  account  stated,  the  Plaintiff  can  recover  wherever  a 
certain  and  precise  sum  is  admitted  to  be  due,  though  it 
should  relate  to  only  one  item  or  transaction.  (1  Chit.  Plea. 
308.) 

It  will  be  observed  that  all  the  statements  of  causes  of 
action  founded  on  contract,  except  the  first  twelve,  con- 
tained in  the  Act  of  Simplification,  are  special.  And  it  is 
more  in  accordance  with  the  spirit  of  special  pleading,  and 
particularly  of  the  simplified  system,  that  the  declaration  or 
count  should  be  special.  But,  then,  no  system  of  special 
pleading  would  be  so  fully  adequate  to  the  exigencies  of 
judicial  procedure,  without  these  general  counts  to  be  used 
as  a  reserve  in  a  declaration,  in  case  of  failure  upon  the 
more  special  ones.  They  are,  however,  illegal  in  some 
cases.  And  to  use  them,  to  the  exclusion  of  the  special 
counts,  would,  too,  even  where  they  are  legitimate,  be  often 
found  inexpedient.  They  can,  hoAvever,  of  course,  be  used 
eitlifer  alone  or  together,  with  special  counts  in  a  declara- 
tion in  the  class  of  cases  to  Avhich  they  are  appropriate. 

The  distinction  of  General  and  Special  Counts  does  not 
obtain  in  actions  for  wrongs  independent  of  contract  ^  but 
the  declaration  for  such  injuries  is  always  special ;  as  will 
be  seen  by  the  Forms  in  the  Act  of  Simplification. 

I  will  now  give  the  Forms  of  Pleadings  as  they  are  pre- 
sented in  the  Act  of  Simplification.  They  are  introduced 
by  a  section  of  the  law,  which  enacts  that  the  pleader  shall 
not  be  bound  inflexibly  to  the  letter  of  the  Forms,  but  that 
the  letter  may  be  departed  from  if  the  spirit  of  simplicity  be 
preserved.     The  section  is  as  follows : 


FORMS   OF   PLEADINGS.  153 

137.  "  The  Forms  of  Pleading  wliicli  follow  sliall  be  suffi- 
cient; and  those  and  the  like  Forms  may  be  used,  with 
such  modifications  as  may  be  necessary  to  meet  the  facts  of 
the  case ;  but  nothing  herein  contained  shall  render  it  erro- 
neous or  irregular  to  depart  from  the  letter  of  such  Forms, 
so  long  as  substance  is  expressed  without  prolixity. 

COMME]S"CEMENTS   OF   DECLARATIONS. 

Venue.  "  A.  B.,  by  S.  T.,  his  attorney,  {or  in  Person,  as 
tJie  case  may  he,)  sues  C.  D.,  for  (here  state  the  cause  of  action.''^) 

Conclusions  of  Declarations. 

"  And  the  Plaintiff  claims  $ —  [or  if  the  action  is  brought 
to  recover  specific  goods)  the  Plaintiff  claims  a  return  of  the 
said  goods  or  their  value,  and  $ — ,  for  their  detention." 


STATEMENT  OF  CAUSES  OF  ACTION  ON  CON- 
TEACTS. 

I.  Money  payable  by  the  Defendant  to  the  plaintiff  for 
{tliese  icords:  '''■Money  ijayahle,  c&c,"  should  precede  Money 
counts,  like  I.  to  XII.  inclusive,  hut  need  only  he  inserted  in 
the  first,)  goods  bargained  and  sold  by  the  Plaintiff  to  the 
Defendant. 

II.  "Work  done  and  materials  provided  by  the  Plaintiff 
for  -ilie  Defendant  at  -his  request. 

III.  Money  lent  by  the  Plaintiff  to  the  Defendant. 

IV.  Money  paid  by  the  Plaintiff  for  the  Defendant,  at 
his  request, 

V.  Money  received  by  the  Delcndant  for  the  use  of  the 
Plaintiff. 


154  FORMS    OF    PLEADINGS. 

VI.  Money  found  to  be  due  from  the  Defendant  to  the 
Plaintiff  on  accounts  stated  between  tliem. 

VII.  A  messuage  and  lands  sold  and  conveyed  by  the 
Plaintiff  to  the  Defendant. 

YIII.  The  good  will  of  a  business  of  the  Plaintiff,  sold 
and  given  up  by  the  Plaintiff  to  the  Defendant. 

IX.  The  Defendant's  use  by  the  Plaintiff''s  permission,  of 
messuages  and  lands  of  the  Plaintiff. 

X.  The  hire  of  [as  the  case  may  he,)  by  the  Plaintiff  let  to 
hire  to  the  Defendant. 

XI.  Freight  for  the  conveyance  by  the  Plaintiff  for  the 
Defendant  at  his  request  of  goods  in  ships. 

XII.  The  Demurrage  of  a  ship  of  the  Plaintiff  kept  on 
Demurrage  by  the  Defendant. 

XIII.  That  the  Defendant  on  the  —  day  of ,  by 

his  Promissory  Note,  now  over-due,  promised  to  pay  to  the 

Plaintiff  $ ,  sixty  days  after  date,  but  did  not  pay  the 

same. 

XIY.  That  one  A.  on,  &c.,  (Date,)  by  his  Promissory  Note, 
now  over-due,  promised  to  pay  to  the  Defendant,  or  order, 

S ,  sixty  days  after  date ;  and  the  Defendant  endorsed 

the  same  to  the  Plaintiff;  and  the  said  note  was  duly  pre- 
sented for  payment,  and  was  dishonored,  whereof  the  De- 
fendant had  due  notice,  but  did  not  pay  the  same. 

XV.  That  the  Plaintiff,  on,  &c.,  {Date,)  by  his  Bill  of  Ex- 
change, now  over-due,  directed  to  the  Defendant,  required 

the  Defendant  to  pay  the  Plaintiff"  § ,  sixty  days  after 

date ;  and  the  Defendant  accepted  the  said  Bill,  but  did  not 
pay  the  same. 


FORMS   OF   PLEADINGS.  155 

XVI.  That  the  Defendant,  on  &c.,  {date)  by  his  bill  of 
exchange  directed  to  A.,  reqnired  A.  to  pay  to  the  Plaintiff 
$ —  sixty  days  after  date,  and  the  said  bill  was  duly  pre- 
sented for  acceptance,  and  was  dishonored,  of  which  the  De- 
fendant had  due  notice,  but  did  not  pay  the  same. 

'"That  the  Defendant,  on  &c.,  (date,)  by  his  bill  of  ex- 
change directed  to  A.,  required  A.  to  pay  to  one  H.  or  order 
S —  sixty  days  after  date;  and  the  said  H.  endorsed  the  same 
to  the  Plaintiff;  and  the  said  bill  was  duly  presented  for  ac- 
ceptance, and  was  dishonored,  of  which  the  Defendant  had 
due  notice,  but  did  not  pay  the  same. 

That  the  Defendant,  on  the day  of by  his  single 

bill  did  promise  to  pay  to  the  Plaintiff  $ —  months  after 
date ;  but  did  not  pay  the  same. 

That  the  Defendant  on  the day  of by  his  single 

bill,  bound  himself  to  pay  to  the  Plaintiff  the  sum  of  § —  as 

follows : — The  sum  of  $ —  on  the day  of ;  and  the 

further  sum  of  % —  on  the day  of ;  but  did  not  pay 

the  same. 

XYII.  That  the  Plaintiff  and  Defendant  agreed  to  marry 
one  another,  and  a  reasonable  time  for  such  marriage  has 
elapsed,  and  the  Plaintiff  has  always  been  ready  and  willing 
to  marry  the  Defendant,  yet  the  Defendant  has  neglected  and 
refused  to  marry  the  Plaintiff'. 

XYIII.  That  the  Plaintiff'  and  Defendant  agreed  to  marry 
one  another  on  a  day  now  elapsed,  and  the  Plaintiff  was 
ready  and  willing  to  marry  the  Defendant  on  that  day,  yet 
the  Defendant  neglected  and  refused  to  marry  the  Plaintiff. 

*  The  forms,  that  are  not  numbered,  are  not  contained  in  the  Act  of 
Simplification,  but  have  been  added  by  myseli",  prepared  on  tiie  princi- 
ples on  which  I  constructed  those  contained  in  the  Act. 


15G  FORMS   OF   PLEADINGS. 

XIX,  That  tlie  Plaintiff  and  the  Defendant  agreed  hj 
charter-party,  that  the  Plaintiff's  sliip,  called  the  "Daniel 
Webster,"  should  with  all  convenient  speed,  sail  to  L.,  or  so 
near  thereto  as  slie  could  safely  get,  and  that  the  Defendant 
should  there  load  her  with  a  full  cargo  of  coffee,  or  other 
lawful  merchandise,  which  she  should  carry  to  B,,  and  there 
deliver  on  payment  of  freight  $ —  per  ton ;  and,  that  the 
Defendant  should  be  allowed  ten  days  for  loading,  and  ten 
days  for  discharge,  and  ten  days  for  demurrage,  if  required, 
at  $ —  per  day  ;  and,  that  the  Plaintiff'  did  all  things  neces- 
sary on  his  part  to  entitle  him  to  have  the  agreed  cargo 
loaded  on  board  the  said  ship  at  L.,  and  that  the  time  for  so 
doing  has  elapsed,  yet  the  Defendant  made  default  in  load- 
ing the  agreed  cargo. 

That  the  Defendant  covenanted  with  the  Plaintiff,  that  he 
would,  at  all  times,  upon  request,  deliver  to  the  Plaintiff  all 
the  fat  and  tallow  of  all  beasts  which  he  should  kill  or  clress 

before  the  day  of  in  every  year  for  Jive  years ; 

and  the  Defendant  was  often  requested,  according  to  said 
stipulation,  but  did  not  perform  his  said  covenant. 

XX.  That  the  Defendant,  by  warranting  a  horse  to  be 
then  sound  and  quiet  to  ride,  sold  the  said  horse  to  the 
Plaintiff,  yet  the  said  horse  was  not  then  sound  and  quiet  to 
ride. 

That  the  Defendant,  by  warranting  a  horse  to  belong  to 
him,  sold  the  said  horse  to  the  Plaintiff;  yet  the  said  horse 
was  not  the  horse  of  the  Defendant. 

That  the  Defendant  was  a  common  carrier  of  goods  and 
chattels  for  hire  and  reward.  And  the  Plaintiff  was  pos- 
sessed of  a  package  of  books,  and  delivered  the  same  to  the 
Defendant  to  be  carried  and  delivered,  for  a  certain  reward, 
■from  Baltimore  City  to  Frederick.  And  the  Defendant  re- 
ceived the  same  to  be  carried  and  delivered  as  aforesaid. 


FORMS   OF   PLEADINGS.  157 

Yet,  tlie  Defendant  did  not  cany  and  deliver  tlie  package, 
but  wliolly  lost  it. 

That  the  Defendant  was  a  common  carrier,  of  goods  and 
chattels  for  hire  and  reward.  And  the  Plaintiff  was  pos- 
sessed of  divers  goods  and  chattels,  and  delivered  the  same 
to  the  Defendant  to  be  carried  and  delivered,  for  a  certain 
reward,  from  Baltimore  City  to  Philadelphia.  And  the 
Defendant  received  the  same  to  be  carried  and  delivered  as 
aforesaid.  And  the  Defendant  did  not  carry  and  deliver 
the  said  goods  and  chattels  safely,  bnt  for  want  of  due  and 
proper  care  being  taken  of  them,  they  were  wholly  spoiled, 

XXI.  That  the  Plaintiff  let  to  the  Defendant  a  house, 
jSTo.  200,  Market  street,  in  the  City  of  Baltimore,  for  four 

years,  to  hold  from  the day  of ,  A.  D. ,  at  S — 

a  year,  payable  quarterly,  of  which  rent  quarters  are 

due  and  unpaid. 

XXII.  That  the  Plaintiff,  by  deed,  let  to  the  Defendant  a 

house  on  Patrick  street,  Frederick,  in  county,  seven 

years  from  the day  of  -. ,  A.  D. ,  and  the  De- 
fendant, by  this  said  deed  covenanted  with  the  Plaintiff,  well 
and  substantially  to  repair  the  said  house  during  the  said 
term,  {according  to  the  covenant ;)  yet  the  said  house  was, 
during  the  said  term,  out  of  good  and  substantial  repair. 

XXIII.  That  the  Plaintiff  and  Defendant,  by  their  agree- 
ment in  writing,  referred  the  matters  therein  mentioned  to 
arbitrators ;  and  the  arbitrators  have  made  their  award  in 
writing,  that  the  Defendant  pay  the  Plaintiff  the  sum  of  $ — , 
which  the  Defendant  has  failed  to  do. 

{Wliere  the  award  is  not  for  the  mere  payment  of  money  as 
ahove,  but  for  the  performance  of  some  act  by  the  Defendant,  that 
act  must  be  stated  in  place  of  the  italic  line;  and  ivhere  the 
Plaintiff  also  is  to  perform  some  act  either  precedent  or  concur- 


158  FORMS   OF    PLEADINGS. 

rent^  a  general  averment.,  "  that  he  has  2^erformed  [or  is  ready  to 
'perform)  all  on  his  part,^''  after  the  statement  of  non-performance 
hy  the  Defendant^  as  above ^  shall  he  sufficient. 

XXIV.  That  one  W.  T.  owed  the  Plaintiff  the  sum  of  $— , 
and  the  PLaintiff  was  about  to  sue  hira  to  recover  the  same. 
And  in  consideration  that  the  Plaintiff  would  forbear  to  sue 
the  said  W.  T.,  the  Defendant  agreed  to  pay  the  same  to  the 
Plaintiff,  and  the  Plaintiff  did  forbear  to  sue  the  said  W.  T. ; 
and  the  Defendant  has  not  paid  the  said  sum  of  $ — . 

That  the  Defendant  promised  to  pay  the  Plaintiff  for  all 
necessaries  that  the  Plaintiff  should  provide  one  T.  11.  with; 
and  the  Plaintiff  provided  T.  H.  with  necessaries ;  and  the 
Defendant  did  not  pay  for  the  same. 

For  services  rendered  as  a  physician,  and  medicines  pro- 
vided, by  the  Plaintiff  for  the  Defendant  at  his  request.' 

For  services  rendered  as  an  attorney  at  law  by  the  Plain- 
tiff for  the  Defendant,  at  his  request. 

{The  two  preceding  counts  may.,  Wee  the  common  counts^  he 
preceded  hy  the  words,  "  Money  payable.,  cDc."  It  is  not  neces- 
sary to  specify  the  nature  and  the  manner  of  the  work  and  labor, 
(3  Saund.  P.  349,  (2) )  as  is  done  in  these  counts.  But  the 
Plaintiff  may  use  the  common  count  instead;  and  prove  the 
special  sort  of  worh.  It  is  however  better  to  declare  specially., 
and  have  the  common  count  also.) 

XXY.  That  the  Plaintiff  purchased  of  the  Defendant  a 
thousand  bushels  of  wheat,  for  the  sum  of  fifteen  hundred 
dollars,  to  be  paid  for  on  delivery  thereof;  and  the  Defendant 

promised  to  deliver  the  same  on  the day  of at  the 

Defendant's  ware-house,  in  the  City  of  Baltimore ;  and  on 
said  day,  the  Plaintiff  demanded  said  wheat  at  said  ware- 
house, and  tendered  to  the  Defendant  said  sum  of  fifteen 


FORMS   OF   PLEADINGS.  159 

hundred  dollars  in  payment  of  the  same ;  and  the  Defendant 
refused  to  deliver  the  said  wheat  to  the  Plaintiff. 

That  the  Defendants  on  the day  of  by  their 

"bond  acknowledged  themselves  to  be  bound  to  the  State  of 
Maryland,  in  the  sum  of  $ — ;  which  bond  is  subject  to  the 

condition : — That  if  the  Defendant  A.  B.,  as  sheriff  of  

county,  Qiere  recite  tJie  condition.) 

That  at  the  Circuit  Court  for  county, Term, 

1854,  L.  11.,  for  whose  use  this  action  is  brought,  recovered 

judgment  against  one  M.  S.,  for  the  sum  of dollars  and 

cents,  and  dollars  for  costs.     And   that   after 

making  the  said  bond  by  the  Defendants,  and  before  the 
bringing  this  action,  the  said  L.  H.  for  the  recovery  of  the 
amount  of  said  judgment  and  costs,  prosecuted  out  of  the 
said  Court  a  writ  of  Jien  facias  to  the  said  A.  B.,  as  sheriff 

of County,  by  which  writ  he  was  commanded,  of  the 

goods  and  chattels,  lands  and  tenements,  of  the  said  M.  S., 
in  his  bailiwick,  to  make  the  amount  of  the  said  judgment 
and  costs,  and  ■  to  have  the  same  before  the  said  Court  here 
to  render  the  same  to  the  said  L.  H.;  and  said  writ  before 
the  return  day  thereof,  was  delivered  to  the  said  A.  B.  as 
sheriff,  to  be  executed  by  him.  And  by  virtue  of  the  said 
writ,  the  said  A.  B.  levied,  of  the  goods  and  chattels  in  his 
bailiwick,  of  the  said  M.  S.,  the  full  amount  of  said  judgment 
and  costs.  And  the  said  A.  B.  has  not  paid  to  the  said  L. 
II.  the  sum  of  money  and  costs  levied  as  aforesaid. 

That  the  Defendants  on  the day  of ,  by  their 

bond,  bound  themselves  to  the  State  of  Maryland  in  the  sum 
of  $ — :  which  bond  is  subject  to  the  condition  :  That  if  the 
Defendant  A.  B.  shall  well  and  truly  perform  the  ofl&ce  of 
Executor  of  0.  M.,  &c.,  {here  insert  the  condition.) 

And  the  said  0.  M.  in  his  life  time  was  indebted  to  S.  K., 
for  whose  use  this  action  is  brought,  for 

1.  Goods  bargained  and  sold  by  the  said  S.  K.  to  0.  M. 
in  his  life  time. 


160  FORMS   OF   PLEADINGS. 

2.  "Work  done  and  materials  provided  by  tlie  said  S.  K 
for  0.  M.  in  liis  life  time,  at  his  request. 

4.  That  0,  M.  in  his  life  time,  on  the day  of ,  by 

his  promissory  note,  over-due  in  his  life  time^  promised  to  pay 
to  the  said  S.  K.  $ — ,  sixty  days  after  date,  but  did  not  pay 
the  same. 

And  there  came  to  the  hands  of  the  said  Executor,  after 
the  death  of  the  said  0.  M.,  assets  of  the  said  0.  jM.,  sufficient 
to  pay  all  his  debts. 

That  the  defendants,  on  the day  of ,  by  their 

bond,  bound  themselves  to  the  State  of  Maryland  in  the  sum 
of  $ — ;  which  bond  is  subject  to  the  condition:  That  if  the 
Defendant  A.  B..  shall  well  and  truly  perform  the  of6.ce  of 
Executor  of  0.,  &c.,  {Jiere  insert  the  condition?) 

And  the  said  O.  M.  made  his  last  will,  and  beqaeathed  to 
S.  K.,  for  whose  use  this  action  is  brought,  a  legacy  of  one 
thousand  dollars  ;  and  the  residue  of  his  personal  property^  after 
paying  the  debts,  expenses  and  legacies. 

And  there  came  to  the  hands  of  the  said  executor,  after 
the  death  of  the  testator,  assets  of  the  testator,  sufficient  to 
pay  all  his  debts,  the  expenses,  and  legacies ;  and  leaving  a 
large  residue.  But  the  said  executor  has  not  paid  the  said 
legacy  and  residue  to  the  said  S,  K. 

That  the  Defendants  on  the  ••  day  of ,  by  their 

bond,  acknowledged  themselves  to  be  bound  to  the  State  of 
Maryland  in  the  sum  of  § — ;  which  bond  is  subject  to  the 
condition :  That  if  the  Defendant  A.  B.,  as  guardian  of  0.  P. 
of county,  shall,  &c.,  {hei'e  insert  the  condition) 

That  after  the  making  the  said  bond,  the  said  guardian 
did  receive  on  account  of  the  said  0.  P.,  for  whose  use  this 

action  is  brought,  as  his  ward,  the  sum  of  S ;  and,  that 

before  the  bringing  off  this  action,  the  said  O.  P.  arrived  at 
the  age  of  twenty-one  years,  and  requested  the  said  A.  B., 


FOR-AIS   OF   PLEADINGS.  161 

to  pay  to  him  tlie  said  sum  of  $ ,  wliicli  tlie  said  A.  B . 

has  failed  to  do. 


FOR  WRONGS  INDEPENDENT  OF  CONTRACT. 

XXVI.  That  the  Defendant  broke  and  entered  certain 

land  of  the  Plaintiff  called  "  The  Orchard,"  in county, 

and  depastured  the  same  with  cattle. 

That  the  Defendant  broke  and  entered  the  fishery  of  the 

Plaintiff,  called ,  situated  in county,  and  took  fish 

and  converted  them  to  his  own  use. 

That  the  Defendant  seized,  and  took  the  Plaintiff's  cattle. 
that  is  to  say — {here  specify  them) 

That  the  Defendant  detained  the  plaintiff's  horse. 

XXVII.  That  the  Defendant  assaulted  and  beat  the 
Plaintiff,  gave  him  into  the  custody  of  a  constable,  and 

caused  him  to  be  imprisoned  in  the  jail  of county,  {or 

city) 

XXVIIT.  That  the  Defendant  debauched  and  carnally 
knew  the  Plaintiff's  wife. 

XXIX.  That  the  Defendant  converted  to  his  own  use,  or 
wrongfully  deprived  the  Plaintiff  of  the  use  and  possession 
of  the  Plaintiff''s  goods ;  that  is  to  say,  ivheat,  rye,  household 
furniture,  (or,  as  the  case  may  le) 

XXX.  That  the  Plaintiff'  was  possessed  of  a  mill,  called 

"Linganore  Mill,"  in  county,  and  by  reason  thereof, 

was  entitled  to  the  flow  of  a  stream  for  working  the  same, 

and  the  Defendant,  by  cutting  the  bank  of  said  stream, 

diverted  the  water  tlicreof  away  from  the  said  mill. 

11 


1G2  FORMS   OF   FLEADINGS. 

XXXI.  That  the  Phaintiff  was  possessed  of  land,  called 

"Idlewild,"  in county,  and  was  entitled  to  a  way  from 

said  land,  over  the  land  of  the  Defendant,  to  a  public  high- 
way, for  himself  and  his  servants,  with  horses  and  wagons 
to  go  and  return,  at  all  times,  at  his  and  their  free  will,  for 
the  more  convenient  occupation  of  the  said  land  of  the 
Plaintiff;  and  the  Defendant  deprived  him  of  the  use  of  the 
said  way,  in  as  ample  a  manner  as  he  was  entitled. 

That  the  plaintiff  was  the  owner  of  divers  goods  and 
chattels,  and  had  hired  them  for  a  certain  term  then  unex- 
pired, to  one  E.  F.,  and  whilst  the  same  Avere  so  let  and  in 
the  possession  of  the  said  E.  F.,  and  the  reversionary  interest 
still  in  the  Plaintiff,  the  Defendant  took  said  goods  and 
chattels  out  of  the  possession  of  the  said  E.  F.  and  converted 
them  to  his  own  use. 

That  the  Plaintiff  let  to  one  A.  B.  a  house,  No.  200  Mar- 
ket street,  in  the  City  of  Baltimore,  for  a  certain  term,  and 
whilst  the  said  house  was  in  the  possession  of  the  said 
tenant,  and  the  reversion  thereof  then  belonging  to  the 
Plaintiff,  the  Defendant  carelessly  dug  beneath  the  foundation 
of  one  of  the  walls  of  said  house,  so  that  the  wall  was, 
thereby,  damaged  to  the  injury  of  the  Plaiutift^'s  reversion- 
ary interest. 

{Under  the  head  "  Title"  I  have  stated  the  doctrine  of  plead- 
ing to  he,  that  in  an  action  for  an  injury  to  a  reversionary  interest 
in  either  real  or  personal  property,  title  must  he  laid  in  the 
declaration  accordingly.  The  tivo  preceding  counts  are  exem- 
pli ficcdions  of  the  doctrine) 

XXXII.  That  the  defendant  falsely  and  maliciously 
spoke  and  published  of  the  Plaintiff'  the  words  following : 
that  is  to  say,  "he  is  a  thief;"  {if  there  he  any  special  damage, 
here  state  it  ivith  such  reasonahle  particularity  as  to  give  notice 
to  the  Defendant  of  the  particular  injury  compkcined  of ;  for 


FOKMS   OF    PLEADINGS.  163 

instance^  wliereby  the  Plaintiff  lost  liis  situatioa  of  book- 
keeper in  tlie  Bank  of  Waskington. 

XXXIII.  That  the  Defendant  falsely  and  malicionsly 
printed  and  published  of  the  Plaintiff  in  a  newspaper  called 
"  The  Examiner,"  the  ^Yords  following :  That  is  to  say, 
"  he  foreswore  himself,"  the  Defendant  meaning  thereby  that 
the  Plaintiff  had  been  guilty  of  the  crime  of  perjury. 

XXXIY.  That  the  Defendant  is  a  corporation  owning  a 
railroad  between  B.  and  C. ;  that  the  Plaintiff  was  a  passen- 
ger on  said  railroad,  and  by  reason  of  the  insufficiency  of 
an  axle  of  the  car  in  which  he  was  riding,  the  Plaintiff  was 
hurt :  that  the  Defendant  did  not  use  due  care  in  reference 
to  said  axle,  but  the  Plaintiff"  did  use  due  care. 

{This  form  may  he  varied  so  as  to  adapt  it  to  many  cases^ 
hy  merely  changing  the  allegation  as  to  the  cause  of  the  acci- 
dent) 

XXXV.  That  the  Defendant  is  an  incorporated  city  and  is 
bound  to  keep  its  streets  in  repair,  that  one  of  its  streets, 
called  street,  was  negligently  suffered  by  the  De- 
fendant to  be  out  of  repair,  whereby  the  Plaintiff  in  travel- 
ling on  said  street,  and  using  due  care,  was  hurt. 

XXXYI.  That  the  Defendant  hired  from  the  Plaintiff  a 
horse,  to  ride  from  Frederick  to  Hagerstown,  and  thence 
back  to  Frederick,  in  a  proper  manner ;  and  the  Defendant 
rode  said  horse  so  immoderately  that  he  became  lame  and 
injured  in  value. 


PLEAS. 

It  is  impossible  to  state  all  the  causes  of  action,  to  which 
a  given  plea  is  a  proper  defence.  The  pleader  is  presumed 
to  know  what  is  his  proper  defence;  therefore,  in  looking 


164  FORMS   OF   PLEADINGS. 

over  tlie  dilTercnt  pleas,  he  can  find  tlie  one  appropriate  to 
his  case.  All  the  special  pleas  wliich  could  be  pleaded 
under  the  old  system,  are  still  available  defences.  All  that 
is  required  in  regard  to  them,  by  the  Simplifying  Act,  is 
that  they  be  stripped  of  their  artificial  formal  commence- 
ments and  conclusions,  and  all  other  useless  allegations,  and 
be  pleaded  in  their  mere  legal  substance.  The  only  pleas  of 
the  old  system,  which  cannot  be  pleaded,  are  the  general 
issues. 

The  simplied  pleading  introduces  several  new  pleas ;   but 
they  all  could  have  been  used  under  the  old  system,  if  the 
technicalities  had  not  excluded  them.     These  new  pleas  do 
not,  of  course,  introduce  any  new  defences ;  because,  what- 
ever is  a  good  defence  in  laAV  now,  was  a  good  defence  under 
the  old  system  by  way  of  evidence  if  not  of  plea.     Under 
the  old  system,  the  Plaintiff  was  required  to  make  his  state- 
ment in  an  artificial  and  sometimes  fictitious  form,  which 
necessitated  denials  of  an  artificial  and  fictitious  character ; 
and  the  substantial  defence  was  adduced  in  evidence  under 
the  fictitious  issues  formed  by  the  artificial  pleadings.     The 
denials,  embodied  in  these  new  pleas  of  the  simplified  system, 
could  have  been  no  denials  of  the  artificial  affirmatives  of 
the  old  pleadings.     The  artificial  affirmative,   in   implied 
promises,  for  example,  can  only  be  denied  directly  by  the 
artifical  negative  of  the  promise ;  and  the  substantial  defence 
mnst  then  be  given  in  evidence,  under  the  artificial  issue. 
But  as  the  Simplifying  Act  excludes  the  statement  of  the 
fictitious  promise  from  the  declaration,  the  plea  of  did  not 
promise  becomes  at  once  inapplicable,  and  the  new  plea, 
That  he  never  was  indebted  as  alleged,  becomes  an  admissible 
form  of  denial.     As,  too,  in  declaring  on  bills  of  exchange, 
there  is  no  longer  the  allegation  of  the  implied  promise  in 
the  declaration,  the  plea  of  nan  assumpsit  does  not  apply ; 
and  two  special  pleas  have  been  provided :     That  he  did  not 
accept  the  said  bill  of  exchange  as  alleged;  and  that  the  said  bill 
of  exchange  ivas  not  duly  presented  for  acceptance  as  cdleged. 
These  two  pleas  were  facts  or  defences  which  could  have 


FORMS    OF    PLEADINGS.  165 

been  given  in  evidence  under  the  plea  of  iwn  assum2:)sit.  So 
the  new  pleas,  That  lie  did  not  agree  as  alleged;  and  that  he 
did  not  ivarrant  as  alleged,  are  also  let  in  as  proper  forms  of 
denial  in  all  cases  where  the  gist  of  the  averment  of  the 
PlaintilY's  cause  of  action  is  expressed  by  the  words  agy-ee 
or  ivarrant.  As  now,  in  the  statement  of  agreements,  and 
of  warranties  no  artificial  words  supersede  or  usurp  the 
meaning  of  the  words  a^ree  or  tcarrant,  any  denial  of  these 
words  is  legitimate.  So,  again,  the  new  plea.  That  he  did 
not  let  a  house  as  alleged,  becomes  applicable  to  the  special 
case,  by  abolishing  the  technicalities  by  which  it  was  before 
excluded.  These  are  all  the  new  pleas  introduced  by  the 
Simplifying  Act  in  regard  to  actions  on  contracts.  All  the 
other  pleas  in  regard  to  actions  on  contracts  are  but  modi- 
fications of  old  pleas. 

In  regard  to  actions  for  wrongs  independent  of  contract 
no  new  plea  has  been  introduced  by  the  Simplifying  Act. 
The  general  issue  not  guilty,  has,  it  is  true,  been  abolished ; 
and  the  plea,  That  he  did  not  commit  the  wrong  alleged,  has  been 
substituted  for  it.  .  But  this  plea  is,  in  scope,  the  same  with 
the  plea  of  not  guilty.  Both  pleas  amount  to  a  denial  of  the 
wrong  alleged,  and  no  more.  In  an  action  for  breaking  the 
plaintiff's  close  or  for  taking  his  goods,  if  the  plaintiff  did 
not,  in  fact,  enter  the  close  in  question  or  take  the  goods ;  or 
if  he  did  break  and  enter  the  close,  but  it  was  not  in  the 
possession  of  the  'plaintijf,  or  not  laiufully  in  his  possession,  as 
against  the  better  title  of  the  Defendaiit ;  or  if  he  did  take 
the  goods  but  they  did  not  belong  to  the  Plaintiff,  the  substi- 
tuted plea  is  applicable,  just  as  the  plea  of  not  guilty  was. 
For  as  the  declaration  in  such  cases  alleges  the  trespasses  or 
wrongs  to  have  been  committed  on  the  close  or  goods  of  the 
Plaintiff,  the  new  plea,  as  well  as  the  plea  of  not  guilty  in- 
volves a  denial,  that  the  defendant  broke  and  entered  the 
close,  or  took  the  goods  of  the  Plaintiff.  The  plea  therefore 
is  a  good  plea  wherever  the  defendant  means  to  contend 
that  the  Plaintiff  had  no  possession  of  the  close,  or  no  pro- 


166  FORMS    OF    PLEADINGS. 

perty  in  the  goods,  sufficient  to  entitle  liim  to  call  tliem  bis 
own.  If  the  defence  be  of  ony  other  kind,  this  new  plea, 
like  the  plea  of  not  guilty  will  not  apply.  So  if  the  action 
be  for  an  assault  and  battery,  if  the  Defendant  did  not  assault 
or  beat  the  plaintiff,  this  new  plea  is  applicable :  but  if  his 
defence  be  of  any  other  description,  the  plea  will  be  inap- 
plicable. The  plea,  therefore,  differs  from  not  guilty^  merely 
in  form.  This  general  plea  is  applicable  whenever  the  wrong 
is  denied. 

The  Act  of  Simplification  prescribes  the  following  Com- 
mencements for  Pleas: 


COMMENCEMENTS  FOR  PLEAS. 

XXXVII.  The  Defendant,  by  S.  T.,  his  attorney  {or  in 
person)  says  {liere  state  the  substance  of  the  plea). 

XXXVIII.  And  for  a  second  plea  the  Defendant  says, 
{Here  state  the  second  plea) 

[^All  pleoM  must  commence  in  the  above  forms:  and  they  should 
specfy  to  tvhich  count  or  counts  in  the  declaration  they  are 
pleaded ;  for  when  a  plea  does  not  profess  to  he  an  answer  to 
any  particular  count,  it  must  he  considered  an  answer  to  the 
ivhole  declaration  ;  (5  Harr.  &  John  432)  and  if  it  should  not 
he  an  answer  to  the  whole  declaration,  though  a  good  ansiuer  to  a 
count,  it  ivill  he  good  for  nothing,  as  heing  had  in  part,  it  is  had 
altogether.     Steph.  Pleas.  403-5.] 


PLEAS  IN  ACTIONS  ON  CONTRACT. 

XXXIX.    That  he  never  was  indebted  as  alleged.    {This 
plea  is  applicable  to  declarations  like  those  numbered  1.  to  XII) 


FORMS   OF   PLEADINGS.  167 

XL.  That  lie  did  not  promise  as  alleged,  {This  ^j?ea  is 
applicable  to  declarations  like  those  numbered  Xlll.and  XIV., 
and  to  declarations  on  simple  promises  of  any  kind.) 

XLI.  That  he  did  not  accept  the  bill  of  exchange  as  al- 
leged. {This  p)lea  is  appliccdtle  to  declarations  like  that  num- 
bered XV.) 

XLII.  That  said  bill  of  exchange  was  not  dnlj  presented 
for  acceptance  as  alleged.  {7 his  plea  is  applicccble  to  declara- 
tions like  that  numbered  X  F/.) 

XLIII.  That  he  did  not  agree  as  alleged.  {This  plea  is 
applicable  to  declarations  like  those  numbered  XVII  to  XIX.) 

XLIV.  That  he  did  not  warrant  as  alleged.  {This  plea  is 
apiplicable  to  declarations  like  that  numbered  XX.) 

XLV.  That  he  did  not  let  a  honse  as  alleged,  {This plea 
is  applicable  to  declarations  like  that  numbered  XXI.) 

XLVI.  That  the  alleged  deed  is  not  his  deed.  {This plea 
is  applicable  wherever  the  fact  of  the  execution  of  any  sealed 
instrument  is  denied.) 

XLVII.  That  at  the  time  of  the  making  of  the  alleged 
deed,  the  Defendant  was  and  still  is  within  twenty-one  years 
of  age. 

XLYIII.  Tliat  at  the  time  of  the  makino^  the  allesred 
deed  the  Defendant  was  and  still  is  the  wife  of  one  W.  T, 

XLIX.  That  the  Defendant  was  unlawfully  imprisoned 
by  the  plaintiff",  and  others  in  collusion  ivith  him,  until  by 
duress  of  imprisonment  he  made  the  alleged  deed. 

L,  That  the  alleged  deed  was  procured  by  the  fraud  of 
the  Plaintiff. 


168  FORMS   OF   PLEADINGS. 

LI.  Thfit  tliG  Plaintiflf  threatened  tlic  life  of  the  Defend- 
ant unless  he  would  make  the  alleged  deed ;  and  that  from 
fear  of  the  threats  he  made  the  same. 

LII.  That  after  the  sealing  and  delivery  of  the  alleged 
deed,  it  was,  without  the  consent  of  the  defendant,  altered, 
and  the  words  {insert  them)  were  inserted  and  substituted^ 
therein,  for  the  words  (insert  them). 

LIII.  That  the  Defendant  delivered  the  alleged  deed,  to 
one  A.  F.,  as  an  escrow  on  condition  that  {state  the  condition) 
then  the  said  A.  F.,  should  deliver  the  alleged  deed  to  the 
Plaintiff  as  the  deed  of  the  Defendant.  And  the  Plaintiff 
has  not  performed  the  condition. 

That  upon  every  request  made  to  him,  the  Defendant  did 
deliver,  to  the  Plaintiff,  all  the  fat  and  tallow  of  all  the 
beasts  which  were  killed  or  dressed  by  him,  before  the  said 
day  in  every  year  which  has  elapsed  since  the  date  of  said 
covenant. 

That  the  Defendant  was  not  a  common  carrier  as  alleged. 

That  the  Defendant  did  not  receive  and  undertake  to  carry 
and  deliver  any  goods  and  chattels  for  the  Plaintiff,  as  al- 
leged. 

That  the  Defendant  did  not  lose  the  said  package,  but 
carried  and  delivered  the  same  safely. 

That  the  said  goods  and  chattels  were  not  spoiled  as  al- 
leged. 

{The  mode  of  stating  other  defences  by  a  common  carrier^  vjill 
readily  occur  to  the  plectder.) 

That  the  said  house  was  not,  during  the  said  term,  out  of 
good  and  substantial  repair. 


FORMS   OF   PLEADINGS.  169 

JAY.  That  tlie  alleged  cause  of  action  did  not  accrue 

within years  (state  the  period  of  limitation  applicahle  to 

the  case)  before  this  suit. 

LY.  That  before  this  action  he  satisfied  and  discharged 
the  plaintiff's  claim  by  payment. 

LVI.  That  the  Plaintiff  at  the  commencement  of  this  suit 
was,  and  still  is  indebted  to  the  Defendant  in  an  account 
equal  to  the  Plaintiff's  claim,  for  {insert  the  cause  of  set-off 
as  in  a  Declaration ;  See  Form,  ante,)  which  amount  the 
Defendant  is  willing  to  set-off  against  the  Plaintiff's  claim. 

LVII.  That  after  the  alleged  claims  accrued,  and  hefore  suit, 
the  Plaintiff,  by  Deed,  released  the  Defendant  therefrom. 

LVIII.  That  at  the  Circuit  Court,  for County, 

Term,  1S54,  the  Plaintiff  recovered  judgment  against  the 

Defendant  for  the  sum  of dollars  and cents,  and 

dollars  costs ;  and  that  said  judgment  was  rendered  on 

the  same  cause  of  action  mentioned  in  the  Plaintiff's  Decla- 
ration, and  is  still  a  subsisting  judgment. 

LIX.  That  he  was  discharged  as  an  insolvent  debtor  by 

the  Circuit  Court  for County,  {or  Court  of  Common  PUas 

for  the  City  of  Baltimore,)  on  the  —  day  of ,  1854,  and 

the  alleged  claim  accrued  before  the  filing  of  his  Petition. 

LX.  That  he  applied  by  Petition  as  an  insolvent  debtor 

to  the  Circuit  Court  for County,  {or  Court  of  Common 

Pleas  for  the  City  of  Baltimore,)  on  the  —  day  of  , 

eighteen  hundred  and  fftyfour,  and  the  proceedings  under 
the  Petition  are  still  pending ;  and  that  the  alleged  claim 
accrued  before  the  filing  of  his  Petition. 

138.  "A  Defendant  may  plead,  as  in  the  above  Form, 
that  he  has  applied  by  Petition  as  an  insolvent  debtor  to  the 


170  FORMS   OF    PLEADINGS. 

proper  Court,  and  tliat  tlio  proceedings  under  Lis  Petition 
are  still  pending,  and  that  tlio  alleged  claim  accrued  before 
tlie  filing  of  liis  Petition.  And  upon  proof  of  tlie  facts  so 
pleaded,  judgment  shall  only  be  entered  subject  to  tlie 
result  of  tlie  proceedings  under  the  Petition. 


PLEAS  IN  ACTIONS  FOR  WRONGS  INDEPEND- 
ENT OF  CONTRACT. 

LXI.  That  he  did  not  commit  the  wrong  alleged. 

That  the  said  land  at  the  time  of  said  alleged  trespass 
"was  the  close,  soil  and  freehold  of  the  Defendant,  wherefore 
he  entered  said  land. 

That  he  had  a  right  of  pasture  on  said  land  for  said  cattle 
being  his  own  cattle. 

LXII.  That  he  did  what  is  complained  of  by  the  Plain- 
tiff's leave. 

LXIII.  That  the  Plaintiff  was  not  entitled  to  the  said 
way  over  the  Defendant's  land  as  the  Plaintiff  has  alleged. 

LXIV.  That  the  Plaintiff  first  assaulted  him;  and  he 
committed  the  alleged  assault  in  his  own  defence. 

That  the  Plaintiff  wrongfully  entered  the  defendant's 
house,  and  was  making  a  disturbance  there,  and  the  Defend- 
ant gently  removed  him. 

That  he  arrested  the  Plaintiff  on  suspicion  of  felony,  and 
did  only  what  was  necessary  for  that  purpose. 

That  the  cattle  were  trespassing  on  the  Defendant's  land, 
and  he  took  and  detained  them  for  the  injury  committed. 


FORMS   OF   PLEADINGS.  171 

LXY.  That  the  Defendant,  at  tlie  time   of  the  alleged 

trespass,  was  possessed  of  land  called  "  Idlewild,"  in 

County,  and  was  entitled  to  a  way  from  said  land  over  tlie 
land  of  the  Plaintiff,  to  a  public  highway,  for  himself  and 
his  servants  with  horses  and  wagons,  to  go  and  return  at 
all  times,  at  his  and  their  free  will,  for  the  more  convenient 
occupation  of  the  said  land  of  the  Defendant ;  and  that  the 
alleged  trespass  was  a  use  by  the  Defendant  of  said  way. 

EEPLICATIONS. 

LXYI.  The  Plaintiff  joins  issue  upon  the  Defendant's 
first,  second,  &c.,  pleas. 

LXYII.  The  Plaintiff  as  to  the  second  plea,  says,  {state 
the  Answer  to  the  Plea  as  in  the  following  Forms?) 

LXVIII.  That  the  alleged  release  is  not  the  Plaintiff's 
Deed. 

LXIX,  That  the  alleged  release  was  procured  by  the 
fraud  of  the  Defendant. 

That  the  cause  of  action  did  accrue  within . years 

before  this  suit. 

That  at  the  time  the  cause  of  action  accrued,  the  Defend- 
ant was  out  of  the  State,  and  the  suit  was  commenced,  within 
years  after  his  return. 

LXX.  That  the  alleged  set-off  did  not  accrue  within 

years  [state  tlie  period  of  limitation  applicable  to  the  case,)  before 
this  suit. 

LXXI.  That  the  Plaintiff's  claim  is  upon  an  account 
concerning  trade  between  himself  and  the  Defendant,  as 
merchant  and  merchant. 

LXXII.  That  the  Plaintifl"  was  possessed  of  lands  called 


172  FORMS   OF   PLEADINGS. 

"Midsummer,"  in County,  wlicreon  tlie  Defendant  was 

trespassing  and  doing  damage,  whereupon  the  Plaintiff  re- 
quested the  Defendant  to  leave  said  land,  which  the  Defend- 
ant refused  to  do ;  and  thereupon  the  Plaintiff'  gently  laid 
his  hands  on  the  Defendant  in  order  to  remove  him,  doing 
no  more  than  was  necessary  for  that  purpose  which  is  the 
alleged  first  assault  by  the  Plaintiff'. 

LXXIII.  That  the  Defendant  was  not  entitled  to  the  said 
way  over  the  Plaintiff''s  land  as  the  Defendant  has  alleged. 

LXXIY.  That  the  alleged  trespass  was  not  a  use  by  the 
Defendant  of  the  said  way. 

LXXV.  That  the  Defendant  was  not  within  the  age  of 
twenty- one  years  as  alleged. 

That  the  goods  for  which  the  action  is  brought,  were 
necessaries  suitable  to  the  Defendant's  condition  in  life. 

LXXVI.  That  the  alleged  deed  was  not  delivered  as  an 
escrow  as  alleged. 

LXXYII.  That  the  Defendant  was  not,  and  is  not  now, 
the  wife  of  one  "W".  T.  as  alleged. 

LXXVIII.  That  the  Defendant  did  not  make  the  alleged 
deed  by  duress  as  alleged. 

LXXIX.  That  the  alleged  deed  was  not  procured  by  the 
fraud  of  the  Plaintiff. 

LXXX.  That  the  Defendant  did  not  commit  the  alleged 
assault  in  his  own  defence. 


NEW  ASSIGNMENT. 

LXXXI.    The  Plaintiff,  as  to  the  and Pleas, 

says,  that  he  sues  not  for  the  Trespasses  therein  admitted, 
but  for  Trespasses  committed  by  the  Defendant  in  excess 


FORMS   OF   PLEADINGS.  173 

of  tlie  alleged  riglits,  and  also  in  otlier  parts  of  the  said  land 
and  on  other  occasions,  and  for  other  purposes  than  those 
referred  to  in  the  said  Pleas. 

{If  the  Plaintiff  replies  and  neio  assigns,  the  new  Assignment 
may  be  as  folloivs :) 

LXXXII.    And  the  Plaintiff,  as  to  the and 


Pleas,  further  says,  that  he  sues  not  only  for  the  Trespasses 
in  these  Pleas  admitted,  but  also  for,  &c. 

{If  the  Plaintiff  replies  and  new  assigns  to  some  of  the  Pleas, 
and  new  assigns  only  to  the  other,  the  Form  may  he  as  follows :) 

LXXXIII.    And  the  Plaintiff,  as  to  the  and 


Pleas,  further  says,  that  he  sues  not  for  the  Trespasses  in 

the Pleas  {the  Pleas  not  replied  to,)  admitted,  but  for 

the  Trespasses  in  the Pleas  {the  Pleas  replied  to,)  ad- 
mitted, and  also  for,  &c. 


^-PLEAS  IX  ABATEMENT. 

LXXXIV.  That  the  Plaintiff  at  the  time  of  issuing  the 
Summons  in  this  case,  was  and  still  is  the  wife  of  one  R.  B. 

LXXXY.  That  the  Plaintifi'  is  within  twenty-one  years 
of  age ;  and  has  declared  by  attorney,  when  he  should  have 
declared  by  next  friend  or  guardian. 

LXXXVI.  That  the  said  contract,  in  the  Declaration 
mentioned,  was  made  by  the  Defendant  jointly  with  one 
W.  P.,  who  is  still  living  and  is  residing  in  the  County  {or 
the  City,)  aforesaid ;  and  was  not  made  by  the  Defendant 
alone ;  and  therefore,  the  said  W.  P.  should  have  been  sued 
also. 

*  Xo  diliilory  Plea  can  be  received  after  tlio  rule  day,  unless  the 
fact  upon  whicli  it  is  founded,  occurred  subsequent  to  llie  rule  day.  5 
Ilarr.  &  John.  489. 


174  FORMS   OF   PLEADINGS. 

{This  Form  shall  he  sufficient  ivhether  the  contract  he  hy  ixirol 
or  hy  deed.) 

FORM  OF  AFFIDAVIT  TO  PLEAS  IN  ABATEMENT 
REQUIRED  BY  THE  STATUTE  16  ANNE. 

LXXXVII.  County, 

M.  R.,  {the  Defendant  in  the  cause^)  makes  oatli  and  says, 
that  tlie  Plea,  liereimto  annexed,  is  true  in  substance  and  in 
fact.  M.  R. 

Sworn  before 

FORM  OF  DECLARATION,  WHEN  THE  SUMMONS 
IS  RETURNED  AS  TO  SOME  OF  THE  DEFEND- 
ANTS, "CANNOT  BE  FOUND." 

LXXXYIII.  {Venue,)  R.  G.,  by  S.  T.,  bis  Attorney,  {or  in 
persoyi,)  sues  J.  T.  and  M.  B.,  (but  M.  B.  cannot  be  found 

by  tbe  Sheriff,)  for  {hei-e  state  the  cause  of  action,)  and  the 
Plaintiff  claims  from  J.  T.  {the  person  summoned^  § . 

COMMENCEMENTS  OF  DECLARATIONS,  BY  PER- 
SONS SUING  IN  SPECIAL  CHARACTERS. 

LXXXIX.  (  Venue)  A.  B.,  Executor  of  the  last  mil  {or 
administrator  of  the  goods,  &c)  of  0.  H.  deceased,  by  S.  T.  his 
attorney,  {or  in  j^erson,)  sues  D.  E.  for  {here  state  the  cause  of 
action.) 

XC.  ( Venue.)  C.  K.,  Trustee  of  0.  X.,  an  insolvent  debtor, 
by  S.  T.,  his  attorney,  {or  in  person,)  sues  L.  P.,  for  {liere  state 
the  cause  of  action?) 

XCI.  (  Venue)  J.  T.,  who  is  within  age,  by  S.  T.  his  next 
friend  {or  guardian)  sues  W.  B.  for  {here  state  the  cause  of 
action. 

XCII.  ( Venue)  G.  H.,  who  was  the  husband  of  L.  K.  de- 


FORMS   OF   PLEADINGS.  175 

ceased,  formerly  L.  B.,  who  lias  survived  his  said  wife,  by 
S.  T.,  his  attorney,  {or  in  jierson^  sues  C.  P.  for  {here  state  the 
cause  of  action.) 

XCIII.  ( Venue.)  B.  H.  and  F.  W.,  surviving  partners  of 
T.  K.  and  I,  M.,  {trading  under  the  name  of  B.  H.,  F.  W.  & 
Co.,)  by  S.  T.,  their  attorney,  {or  in  person^  sue  T.  H.,  sur- 
viving partner  of  M.  S.,  {trading  under  the  name  of  T.  H.  and 
31.  S.,)  for  {here  state  the  cause  of  action.) 

{The  words  "  trading  under  the  name  of  d'c,  may  be  omitted, 
unless  the  name  of  the  firm  he  contained  in  the  contract  sued  on.) 

{The  conclusion  of  Declarations,  by  persons  suing  in  special 
characters,  shall  be  the  same  with  that  of  declarations,  by  persons 
suing  in  their  proper  characters^ 


COMMENCEMENTS   OF    DECLARATIONS  BY  EX- 
ECUTORS AND  ADMINISTRATORS. 

XCIY.  (  Venue)  A.  B.  Executor  of  the  last  will  {or  ad- 
ministrator of  the  goods,  &c.,)  of  0.  H.  deceassd,  by  S.  T.  his 
attorney,  {or  in  i:)erson,)  sues  D.  E.  for,  (liere  state  the  cause  of 
action.) 

CONCLUSIONS   OF   DECLARATIONS   BY  EXECU- 
TORS AND  ADMINISTRATORS. 

XCY.  And  the  Plaintiff"  claims  $ ,  {or  if  the  action  is 

brought  to  recover  specific  goods,)  the  Plaintiff"  clahns  a  return 
of  the  goods  or  their  value,  and  $ for  their  detention. 

STATEMENT  OF  CAUSES  OF  ACTION  ON  CON- 
TRACT BY  EXECUTORS  AND  ADMINISTRA- 
TORS. 

XCVI.  Money  payable  by  the  Defendant  to  the  Plaintiff' 


176  FORMS   OF   PLEADINGS. 

for  {these  words,  "  money  payable,''^  &c.,  sJiouId  iirecede  money 
counts  nice  XCYI.  to  CVII,  inclusive,  hut  need  only  he  inserted 
in  the  first,)  goods  bargained  and  sold  by  0.  11.  in  his  life 
time  to  tlie  Defendant. 

XCVII.  Work  done  and  materials  provided  by  O.  H.  in 
his  life  time  for  the  Defendant  at  his  request. 

XCVIII.  Money  lent  to  0.  H.  in  his  life  time  to  the 
Defendant. 

XCIX.  Money  paid  by  0.  H.  in  his  life  time  for  the  De- 
fendant at  his  request. 

C.  Money  received  by  the  Defendant  for  the  use  of  0.  H. 
in  his  life  time. 

CI.  Money  found  to  be  due  from  the  Defendant  to  0.  H. 
in  his  life  time,  on  accounts  stated  between  them. 

CII.  A  messuage  and  lands  sold  and  conveyed  by  0.  II. 
in  his  life  time  to  the  Defendant. 

cm.  The  good  will  of  a  business  of  O.  H.,  sold  and  given 
up  by  0.  H.  in  his  life  time  to  the  Defendant. 

CIY.  The  Defendant's  use,  by  the  permission  of  0.  H.  in 
his  life  time,  of  messuages  and  lands  of  O.  H. 

CV.  The  hire  of  {as  the  case  may  he,)  from  O.  H.  in  his  life 
time,  let  to  hire  to  the  Defendant. 

CYI.  Freight  for  the  conveyance  by  O.H.  in  his  life  time 
for  the  Defendant  at  his  request  of  goods  in  ships. 

CVII.  The  demurrage  of  a  ship  of  0.  H.  in  his  life  time 
kept  on  demurrage  by  the  Defendant. 


FORMS   OF    PLEADINGS.  177 


CYIII.  That  the  Defendant,  on  the day  of 


by  his  promissory  note,  now  over-dne,  promised  to  pay  to 

O.  H,  in  his  life  time,  $ ,  sixtjj  days  after  date,  but  has 

not  yet  paid  the  same. 

CIX.  That  one  A.  on,  &c.,  (date,)  by  his  promissory  note, . 
now  over-due,  promised  to  pay  to  the  Defendant,  or  order, 

S ,  sixty  days  after  date;  and  the  Defendant  endorsed  the 

same  to  0.  H.  in  his  life  time ;  and  the  said  note  was  duly 
presented  for  pajnuent  and  was  dishonored,  whereof  the  De- 
fendant had  notice,  but  has  not  yet  paid  the  same. 

ex.  That  O.  H.  in  his  life  time  on,  &c.,  {date,)  by  his  bill 
of  exchange  now  over  due,  directed  to  the  Defendant,  re- 
quired the  Defendant  to  pay  to  O.  H.  S ,  sixty  days  after 

date ;  and  the  Defendant  accepted  the  said  bill,  but  has  not 
yet  paid  the  same. 

CXI.  That  the  Defendant,  on,  &c.,  (date,)  by  his  bill  of 
exchange  directed  to  A.,  required  A.  to  pay  to  0.  H.  in  his 

life  time  $ ,  sixty  days  after  date ;  and  the  said  bill  was 

duly  presented  for  acceptance  and  was  dishonored,  of  which 
the  Defendant  had  due  notice,  but  has  not  yet  paid  tlie 
same. 

CXII.  That  0.  H.,  in  his  life  time,  let  to  the  Defendant  a 
house.  No,  200  Market  street,  in  the  City  of  Baltimore,  for 

four  years  to  hold  from  ■ day  of  A.  D., at 

3 a  year,  payable  quarter!}-,  of  which  rent quarters 

were  due,  at  the  time  of  the  death  of  0.  H.  and  were  still 
due  and  unpaid, 

{As  the  foregoing  declarations  are  for  suits  against  persons  in 
their  proper  character,  the  pleas,  already  given,  can  be  pleaded 
to  them,) 


U 


178  FORMS    OF    TLEADINGS. 


COMMENCEMENT  OF  DECLARATIONS  AGAINST 
EXECUTORS  AND  ADMINISTRATORS. 

CXIIL  ( Ve^iue.)  A.  B.,  bj  his  Attorney,  {or  in  Person^  as 
the  case  may  he,)  sues  C.  D,  Executor  of  the  last  will  {or  Ad- 
mimstrator  of  the  goods,  chattels,  &c)  of  P.  S.  deceased,  for 
{here  state  the  cause  of  action.) 


CONCLUSIONS  OF  DECLARATIONS  AGAINST  EX- 
ECUTORS AND  ADMINISTRATORS. 

CXIY.  And  the  Plaintiff  claims  S {or  if  the  action 

he  to  recover  specific  goods,)  the  Plaintiff  claims  a  return  of 
the  said  goods  or  their  value,  and  $ for  their  deten- 
tion. 


STATEMENT  OF  CAUSES  OF  ACTION  ON  CON- 
TRACTS, AGAINST  EXECUTORS  AND  ADMINIS- 
TRATORS. 

CXV.  Money  payable  by  the  Defendant,  to  the  Plaintiff' 
for  {these  words  Money  payable,  &c.,  should  precede  Money 
counts  like  CXV  to  CXXVI  inclusive,  hut  need  only  he  inserted 
in  the  first,)  goods  bargained  and  sold  by  the  Plaintiff  to  P.  S., 
in  his  life  time. 

CXVI.  Work  done  aud  materials  provided  by  the  Plain- 
tiff for  P.  S.  in  his  life  time  at  his  request. 

CXYII.  Money  lent  by  the  Plaintiff  to  P.  S.  in  his  life 
time. 

CXYIII.  Money  paid  by  the  Plaintiff,  for  P.  S.,  in  his  life 
time  at  his  reqi\est. 


FORMS    OF    PLEADINGS.  179 

CXIX.  Money  received  by  P.  S.  in  his  life  time  for  ilie 
use  of  the  Plaintiff. 

CXX.  Money  found  to  be  due  from  P.  S.  in  his  life  time, 
to  the  Plaintiff,  on  accounts  stated  between  them. 

CXXI.  A  messuage  and  lands  sold  and  conveyed  by  the 
Plaintiff  to  P.  S.  in  his  life  time. 

CXXII.     The  good  will  of  a  business  of  the  Plaintiff 
sold  and  given  up  by  the  Plaintiff  to  P.  S.  in  his  life  time. 

CXXIIT.  The  use  by  P.  S.  in  his  life  time  of  messuages 
and  lands  of  the  Plaintiff,  by  the  Plaintiff's  permission. 

CXXIV.  The  hire  of  {as  the  case  may  5e,)  by  P.  S.  in  his 
life  time,  let  to  hire  by  the  Plaintiff  to  him. 

CXXV.  Freight  for  the  conveyance  by  the  Plaintiff  for 
P.  S.  in  his  life  time  at  his  request  of  goods  in  ships. 

CXXYI.  The  demurrage  of  a  ship  of  the  Plaintiff  kept 
on  demurrage  by  P.  S.  in  his  life  time. 

CXXYII.  That  P.  S.  in  his  life  time,  on  the day  of 

by  his  promissory  note,  now  over-due,  promised  to 


pay  to  the  Plaintiff  $ ,  sixty  days  after  date,  but  did  not 

pay  the  same  in  his  life  time ;  nor  has  the  Defendant  paid 
the  same  since  the  death  of  P.  S. 

CXXVIII.  That  one  A.  K.,  or,  &c.  {date^  'by  his  promis- 
sory note,  now  over-due,  promised  to  pay  to  P.  S.  or  order, 

$ ,  sixty  days  after  date ;  and  the  said  P.  S.  in  his  life 

time  endorsed  the  same  to  the  Plaintiff;  and  the  said  note 
was  duly  presented  for  payment,  and  was  dishonored 
whereof  the  said  P.  S.  had  due  notice,  but  did  not  pay  the 
same  in  his  life  time,  nor  has  the  Defendant  })aid  the  same 
since  the  death  of  P.  S. 


180  FORMS   OF    PLEADINGS. 

CXXIX.  That  the  Plaintiff,  on,  &c.  {date,)  by  liis  bill  of 
exchange  now  over-due,  directed  to  P.  S.  in  his  life  time, 

required  P.  S.  to  pay  to  the  Plaintiff  $ ,  sixty  days  after 

date ;  and  P.  S.  accepted  the  said  bill,  but  did  not  pay  the 
same  in  his  life  time,  nor  has  the  Defendant  paid  the  same 
since  the  death  of  P,  S. 

CXXX.  That  P.  S.,  in  his  life  time,  on,  ko,.  {date)  by  his 
bill  of  Exchange  directed  to  A.  K.,  required  A.  K.  to  pay 

to  the  Plaintiff  S ,  sixty  days  after  date;  and  the  said 

bill  was  duly  presented  for  acceptance,  and  Avas  dishonored, 
of  which  P.  S.  had  due  notice,  but  did  not  pay  the  same  in 
his  life  time,  nor  has  the  Defendant  paid  the  same  since  the 
death  of  P.  S. 


COMMENCEMEXT   OF    PLEAS    BY   EXECUTORS 
AND  ADMINISTRATORS. 

CXXXL  The  Defendant,  executor  of  the  last  will  {or 
administrator  of  the  goods  and  chattels^  of  P.  S.,  deceased,  by 
S.  T.,  his  Attorney,  {or  in  ^erson^  says,  {liere  state  the  sub- 
stance of  the  plea.) 

CXXXII.  And  for  the  second  plea  the  Defendant  says, 
{here  state  the  second lolea^ 

PLEAS  IN  ACTIONS  ON  CONTRACT  BY  EXECU- 
TORS AND  ADMINISTRATORS. 

CXXXIII.  That  the  said  P.  S.,  deceased,  was  never  in- 
debted in  his  life  time  as  alleged, 

CXXXIV.  That  the  said  P.  S.,  deceased,  did  not  promise 

in  his  life  time  as  alleged. 

CXXXY.  That  the  allesred  cause  of  action  did  not  accrue 
at  any  time  within years  before  this  suit. 


FORMS   OF    PLEADINGS.  181 

CXXXVI.  That  tlie  Defendant  has  fully  administered  tlie 
goods  and  chattels,  rights  and  credits  of  the  said  P.  S.  de- 
ceased ;  and  had  done  so  before  this  suit. 

CXXXYII.  That  before  this  suit,  and  after  the  lapse  of 
one  year,  from  the  date  of  his  letters  testamentary  {or  of 
administration,)  the  Defendant  paid  away,  in  discharge  of 
just  claims,  all  the  assets  of  the  said  P.  S.  deceased,  which 
had  come  to  his  hands ;  and,  that  more  than  six  months  be- 
fore he  so  paid,  he  gave  notice  to  the  creditors  of  P.  S.  to 
bring  in  their  claims.  And  that  at  the  time  of  such  pay- 
ment, he  had  no  notice  or  knowledge  of  the  alleged  claim ; 
and,  that  since  said  payment,  no  further  assets  have  come  to 
his  hands. 

CXXXVIII.  That  before  this  suit  and  after  the  lapse  of 
one  year  from  the  date  of  his  letters  testamentary,  {or  of 
administration,)  the  Defendant  paid  away  in  discharge  of  just 
claims,  a  large  amount  of  assets  of  P.  S.  deceased ;  and,  that 
more  than  six  months  before  said  payments  he  gave  notice 
to  the  creditors  of  P.  S.,  to  bring  in  their  claims.  And  at 
the  time  of  said  payments  he  had  no  notice  or  knowledge  of 
the  alleged  claim.  And  there  are  other  just  debts  still  due 
from  P.  S.,  of  which  the  Defendant  had  no  notice  or  know- 
ledge at  the  time  of  the  said  payments ;  and  he  has  not,  and 
never  has  had,  assets  sufficient  to  pay  but  a  proportion  of 
the  alleged  claim,  regard  being  had  to  the  debts  still  due 
from  P.  S. 


COMMENCEMENTS  AND  CONCLUSIONS  OF  DE- 
CLARATIONS BY  EXECUTORS  AND  ADMINIS- 
TRATORS AGAINST  EXECUTORS  AND  ADMIN- 
ISTRATORS. 

CXXXIX.  County,  A.  B.,  executor  of  the  last 

will  {or  administrator  of  the  goods  and  chattels^  &c.,)  of  W.  II, , 


1S2  FORMS    OF    PLEADINGS. 

deceased,  by  S.  T.  liis  attorney,  [or  in  person,)  sues  T.  K,, 
executor  of  the  last  will  {or  administrator  of  the  goods  and 
chattels,  dbc.,)  of  W.  K.,  deceased,  for  [here  state  cause  of 
action.) 

CX.L.  And  tlie  Plaintiff  claims  $ ,  (or  if  the  action  is 

hronght  to  recover  specific  goods,)  the  Plaintiff  claims  a  return 
of  the  said  goods  or  their  value,  and  $ ,  for  their  deten- 
tion. 


STATEMENT  OF  CAUSES  OF  ACTION  ON  CON- 
TRACT BY  EXECUTORS  AND  ADMINISTRA- 
TORS AGAINST  EXECUTORS  AND  ADMINIS- 
TRATORS. 

CXLI.  Money  payable  by  the  Defendant  to  the  Plaintiff 
for  [these  words,  money  p)ayahle,  &c.,  should  precede  the  money 
counts,  hut  need  only  he  inserted  in  the  first,)  goods  bargained 
and  sold  by  W.  H.  in  his  life-time,  to  "W.  K.  in  his  life 
time. 

CLXII.  Work  done  and  materials  provided  by  "W.  H.,  in 
his  life  time  for  W.  K.,  in  his  life-time. 

CXLIII.  That  W.  K.  in  his  life-time,  on  the day  of 

by  his  promissory  note  now  over-due,  promised  to  pay 

to  W.  H.,  in  his  life-time  S ,  sixty  days  after  date,  but 

did  not  pay  the  same;  nor  has  the  Defendant  paid  the  same 
since  the  death  of  the  said  W.  K. 

CLXIV.  That  one  J.  M.,  on,  kc,  [date,)  by  his  promissory 
note  now  over-due,  promised  to  pay  to  W.  K.,  or  order,  in 

his  life-time  $ ,  sixty  days  after  date ;  and  W.  K,  in  his 

life-time  endorsed  the  same  to  W.  H.  in  his  life-time ;  and 
the  said  note  was  duly  presented  for  payment  and  was  dis- 
honored, whereof  the  said  W.  K.  in  his  life-time  had  notice, 
but  did  not  pay  the  said  note,  nor  has  the  said  Defendant 
since  the  death  of  the  said  "W.  K.  paid  the  same. 


U^DEX. 


THE  ARABIC  NUMERALS  REFER  TO  THE  PAGE  OF  THE  BOOK. 


Abatement,  pleas  in,  38-41,  142-3. 

defects  in,  how  corrected,  144. 
must  correct  the  mistake  of  the  plaintiff,  144. 
cannot  be  received  after  the  rule  day,  unless  the  fact 
on  which  the  plea  is  founded  occurred  subsequent 
to  the  rule  day,  173. 
forms  of,  173-4. 
■Absque  hoc,  64-5. 
Actionem  non,  110. 
Actions,  forms  of,  19-23,  41. 

memorandum  for  bringing,  24-5,  31-2,  34-5. 
Affirmatives,  66,  108. 
Aggravation,  117. 
Ambiguity,  79,  80,  81,  88. 
Amendment,  37-40,  81,  145. 

of  the  declaration,  148-9. 
by  motion,  144 
Appearance,  mode  of,  27-8,  32. 

»,  when  the  defendant  does  not  appear,  26-7,  32,  35. 
Argumentativeness,  63. 
Assault  and  battery,  113. 
Assumpsit,  what,  68-70. 
Authority,  in  general,  83. 

in  respect  of  property,  130. 
Avowry,  what,  111-12. 
-Bar,  pleas  in,  what,  100,  110,  142. 


184  INDEX. 

Bill  of  exchange,  forms  of  declaration  on,  154-5. 

Single,  forms  of  declaration  on,  155. 
Bond,  with  conditions,  how  to  declare  on,  92-3,  95-6. 

forms  of  declaration  on,  159-60. 
Capias,  21,  22. 

Causes  of  action,  joinder  of,  41-4. 
Certainty,  of  the  issue,  120-33. 
Cognizance,  what,  111-12. 
Color,  express  and  implied,  what,  T3-5. 

express,  abolished,  *74. 
Commencements — of  declarations,  97-99. 
form  of,  153. 
of  pleas,  110-12. 

form  of,  166. 
Conclusions — of  declarations,  91-99. 
form  of,  153. 
of  pleas,  none,  111. 
Confession  and  avoidance,  pleas  in,  12-5. 

must  give  color,  13. 
express  color  abolished,  14. 
Contracts,  how  to  declare  on,  93-6. 

forms  of  declarations  on,  158-161. 
forms  of  pleas  to,  166-110. 
Count,  what,  under  the  old  and  under  the  simplified  pleading, 

99,  136-140. 
general  and  special,  149-50. 
money  or  common  counts,  151-2. 
forms  of,  153-4. 
Country,  conclusion  to,  116. 
Covenant,  how  to  declare  on,  94-6. 
forms  of  declaration,  156. 
Damages,  how  laid  in  a  declaration  under  the  simplified  pleading, 

98-9. 
Debt,  22,  68,  11. 

the  formal  distinction  between  debt  and  damages  in  the 
judgment  abolished,  98,  140. 
Declaration,  must  be  one  in  every  case,  141. 
general  rules  relative  to,  90-99. 
when  claim  founded  upon  some  exception,  92. 
when  founded  upon  a  breach  of  contract,  92-96. 


-V 


INDEX.  •  185 

Declaration,  forms  of,  158-161. 

when  for  wrongs  independent  of  contract, 

96-Y,  124-6,127-31. 
forms  of,  161-3. 
form  of  declaration,  when  the  defendant  "can  not  be 

found,"  174. 
commencements  and  conclusions  of,  97-9. 

forms  of,  153. 
where  persons  suing  in  special  characters,  174-5. 
Deed,  or  other  document,  no  profert  or  oyer  of,  81-2. 

form  of  plea,  denying  deed,  167. 
need  not  be  sworn  to,  118. 
Defence,  formal,  not  required,  111,  143. 
De  injuria,  replication  of,  shall  not  be  used,  64-5. 
the  substitute,  66. 
form,  172. 
Demurrer,  55-60. 

form  of,  58,  75. 

must  be  special  for  defects  of  substance,  57-8. 
joinder  in,  58-9. 

admits  the  facts  of  the  opposed  pleading,  59. 
upon,  court  considers  the  whole  series  of  pleadings,  58. 
effect  of  pleading  over  without,  60-1. 
Denial,  62-72. 
Departure,  84,  85. 
Dilatory  pleas,  142-3. 

time  for  pleading,  173. 
forms  of,  173-4. 
Discharge,  plea  in,  72-3. 
Discontinuance,  106-7. 
Duplicity,  general  doctrine  of,  under  the  old  and  the  simplified 

pleading,  133-40. 
Ejectment,  22,  42,  43. 
Evidence,  under  the  old  pleading,  62-3. 

effect  of  the  sim[)liQcation  on  the  admissibility  of, 

47-8,  65,  68,  151-2. 
must  not  be  pleaded,  77. 

matter,  showing  that  a  contract  or  deed  is  void  or  void- 
able, or  that  a  deed  is  an  escrow,  must  be  pleaded,  70-3. 
Exception,  how  to  declare  on,  92. 


U. 


186  INDEX. 

Excuse,  plea  in,  64-6,  T2-3. 
Fictions,  78-9. 

General  issues,  abolished,  62-65. 
substitutes,  164-6. 

non-assumpsit  and  non  est  factum,  68-72. 
Husband  and  wife,  38. 
Indebitatus  assumpsit,  as  a  form^^f  declaring  abolished, 

69,  149-51. 
implied  promises  can  no  longer  be  declared 

on,  78,  149. 
substitutes  for  indebitatus  assumpsit,  151. 
forms  of,  153-4. 
Inducement,  64,  87. 

Injuries  or  wrongs  to  person,  character  and  property,  how  to  de- 
clare on,  96-7,  124-6,  127-32. 
forms  of  declarations  for,  161-3. 
Issue,  what,  46,  53-5. 
in  fact,  55. 
in  law,  55. 
Judgment,  98,  140. 

non  obstante  veredicto,  141. 
prayer  of,  110,  143. 
Joinder  of  causes  of  action  in  same  suit,  41-4. 
in  demurrer,  58-9. 
in  issue,  115,  116,  117. 
Jurisdiction,  plea  to,  142. 
Jury,  questions  of  fact  decided  by,  46. 

of  law,  by  the  Court,  46,  107-8. 
were  originally  witnesses,  124. 
Justification,  pleas  in,  64,  66,  72-3. 
Law,  not  to  be  alleged  in  pleading,  77. 

matter  of,  not  ti'aversable,  103. 
Libel,  mode  of  declaring  in,  96-7. 

form  of  declaration,  163. 
Liberum  tenementum, 

plea  of,  125. 
Materiality,  117-8,  141-2. 
Memorandum, 

of  plaintiff,  24-5,  31,  34. 
of  defendant,  27-8,  32. 
Misnomer,  121-3. 


^ 


INDEX.  187 

Money  Counts,  simplified  by  prohibiting  the  statement  of  a  pro- 
mise, 149. 
new  plea,  in  place  of  non-assumj^sif,  to,  149-50. 
the  scope  of  the  money  counts  and  the  new  plea, 

150-2. 
the  money  or  common  connt  should  not  be  used  to 

the  exclusion  of  special  counts,  152. 
forms  of,  153-4. 
Motions,  the  mode  for  calling  the  attention  of  the  Court  to  defects 
of  form,  144. 
the  form  of,  144.  * 

Names  of  persons  must  be  specified  in  writs,  23,  30. 

in  pleading,  121, 
Negative  pregnant,  what,  79. 
%i»New  assignment,  ll!".-20. 

forms  of,  172-3. 
Nil  debet,  150.     . 
Nil  dicit,  judgment  by,  101. 
Non  assumpsit,  68-72. 
Non  est  factum,  71-2,  118. 
Non-suit,  judgment  of,  122-3. 
"^Not  guilty,  165-6. 

the  substitute  for,  165. 
forms  of,  170. 
Onerari  non,  110. 

Order  of  pleading,  54,  99,  100,  142. 
Original  writs,  21-2. 

summons,  23-4. 
replevin,  29-31. 
Oyer,  81-2,  143. 
^  Payment,  how  pleaded,  and  in  what  cases,  112-15. 
-,   Parties  to  an  action,  17. 
joinder  of,  36. 
of  plaintiffs,  36-9. 
of  defendants,  39-41. 
Place,  123-4. 

Pleading — common  law  and  civil  law  jileading  compared,  45-8. 
rules  and  forms  of,  40-50. 
form,  what,  51-2,  56. 
i  object  of,  45-8,  53-5,  68,  76. 

pur^iose  of  the  simplification,  51,  53. 


") 


188  INDEX. 

Pleading — Continued. 

difference  between  the  old  and  the  simplified,  56, 
6S-V2,  lb,  86. 
the  fundamental  rule  of,  53-4. 
the  f^encral  rule,  54. 
the  machinery  of  pleadincr.  55. 
rules  descriptive  of,  55,  75. 
rules  for  framinp;  the  machinery,  75-6. 
rules  applicable  to  all  pleadings,  77,  90. 

to  the  declaration  only,  00-9. 
■to'  pleadings  subsequent   to  the  de- 
claration, 99-118. 
to  new  assignment,  118-20." 
rules  making  the  issue  certain,  190-33. 
rules  making  the  issue  single,  133-40.  ^' 

of  judgment,  140-1. 
of  repleader,  141-2. 
abatement,  142-4. 
motions,  144. 

must  be  in  writing  and  signed,  89. 
must  be  entitled  of  the  proper  court,  89. 
Pleas,  only  two  forms  of ;  Traverse  and  Confession  and  Avoid- 
ance, 54-5. 
commencements  of,  110-12. 
no  formal  conclusion  to,  111. 
form  of,  110-11. 
short  form  of,  115. 
must  be  in  writing  and  signed,  89. 
must  be  entitled  of  the  proper  court,  89. 
defence,  arising  after  suit,  how  pleaded,  112. 
must  answer  the  whole  of  what  is  adversely  alleged,  100-6. 
must  not  be  too  broad,  104-6. 

any  number  of,  may  be  pleaded,  1  08-10.   See  Special  Pleas. 
the  new  pleas  prescribed,  164-5. 
Possession,  title  of,  how  alleged  in  pleading,  127-30. 
Praecipe,  24. 

Prayer  to  the  court,  64,  107-8. 
of  judgment,  110,  143. 
Precludi  non,  110. 
Profert,  81-2. 
Prolixity,  77. 


INDEX.  ■  189 

Promise,  express  and  implied,  GS-'IB. 

implied  promise  cannot  be  declared  on  ;  the  indebitatus 

Assumpsit  count  being-  abolished,  69,  71. 
express  promise  must  be  stated  in  the  declaration,  TO. 

See  llonei/  Counts. 
Promissory  Xote,  declaration  on,  154. 
Protestation,  102. 
Quality  or  kind,  124-26. 
Quantity  and  value,  126-7. 
^*Quare  clausum  fregit,  126. 
Rebutter,  100. 
Rejoinder,  99. 
Repleader,  141-2. 
Replication,  99,  110-1. 

no  formal  conclusion  to,  111. 
forms  of,  IT  1-2. 
Replevin,  where  it  lies,  29,  30,  43,  19,  99. 
writ  of,  30-1. 
returns  to,  33. 
can  be  renewed,  30. 
how  to  bring  an  action  of,  31-2. 
how  appearance  to,  32. 

allegation  of  title  of  possession  sufficient  in  the  declara- 
tion, 128,  130. 
where  the   defendant  and   the   goods  are  in  different 

counties,  33-5. 
form  of  declaration  in,  161. 
Repugnancy,  19,  80. 
Returns — to  summons,  26. 

to  replevin,  33,  35. 
Reversionary  interests,  how  declared  on,  128-9. 

forms  of  declarations,  162. 
Sett-off,  how  pleas  of,  are  to  be  construed,  115. 
form  of  plea,  169. 

\ Several  counts,  137-8. 
Several  issues,  133,  136. 
Several  pleas,  109-10,  137-8. 
Severance  in  pleading,  135-6. 
Sham  or  tricky  pleading,  81. 
'NSimiliter,  116. 
Singleness  of  issue,  133-40. 


190  INDEX. 

Slander,  96-Y. 

form  of  declaration,  162. 
^  Special  issues,  68-Y2. 
•""  "Special  pleas, 

all  which  could  be  pleaded  under  the  old  sj'stem  still 
available  defences,  164;  the  new  pleas  in  the  place 
of  the  general  issues,  164-5. 
Special  traverse, 

design  of,  63-4. 

substitute  for,  67-8.  '  ' 

Summons,  21-4. 

clerk  bound  to  issue,  24. 
may  be  renewed,  25-6. 
service  of,  personal,  26. 
returns  to,  26. 
Surplusage,  80. 
Surrebutter,  100. 
Surrejoinder,  100. 
Suspension,  plea  in,  142. 
Tender  of  issue,  116. 
Testimony.     See  Evidence. 
Time,  123. 

Title,  to  what  extent  and  how,  it  must  be  alleged,  127-131. 

derivation  of,  when  and  how  alleged,  131-3. 
Titling,  24. 
Traverse,  62-5. 

direct  traverse,  65-6. 
indirect  traverse,  66-8. 
Trespass,  20,  41. 

replication  in,  64-6. 
Trespass  on  the  case,  20,  41. 
replication  in,  64-6. 
Trover,  78-9. 
Value,  126-7. 
Variance,  122,  37,  39. 
Venue,  97,  124. 

Verdict  shall  not  be  for  more  than  is  alleged,  127. 
Videlicet,  123. 
Wife,  123. 
-^"^Writs,  original,  only  three  ; 

Summons,  replevin,  and  ejectment,  21-2,  91. 


ERRATA, 

Page  30,  fourteenth  line  from  the  bottom,  for  "  served, "  read 
renewed.  Page  69,  second  line  from  the  bottom,  for  "  were," 
read  we.  Page  97,  ninth  line  from  the  bottom,  for  "comment," 
read  commencement.  Page  139,  fourteenth  line  from  the  top, 
for  "  no,"  read  do. 


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INDEX  TO  ENGLISH  COMMON  LAW  REPORTS, 

2  VOLS.  8vo.     $9.00. 

A  General  Index  to  all  the  Points  decided  in  the  Courts  of  Queen's  Bench 
Common  Pleas,  and  at  Nisi  Prius,  from  1813  to  the  present  time,  and  reprinted 
in  the  English  Common  Law  Reports.  By  Geo.  W.  Biddle  and  R  C.  McMl'R- 
TRIE,  Esquires. 


T.  .t  J.   sV.  JOIIXSON  &  CO.'S  LAW  PUBLTCATTOXS. 

INDEX  TO  ENGLISH  COMMON  LAW  REPORTS. 

1856.     2  VOLS.     $9.00. 

This  Index  is  a  reliable  guide  to  the  immeuse  mass  of  authorities  contained  in 
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have  been  spared  to  insure  that  accuracy  which  is  indispensable.  The  editoml 
labours  have  been  pei-formed  laboriously  and  faithfully.  Each  case  has  been 
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dental,  upon  which  the  opinion  of  the  court  was  given.  Of  the  large  number 
of  general  titles  into  which  the  book  has  been  divided,  the  Editors  haye  made 
extensive  subdivisions,  which  have  been  again  divided ;  so  that,  by  means  of  a  suit- 
able reference  and  running  title,  the  inquirer  is  directed  to  the  precise  page  on 
which  he  will  find  the  desired  authorities.  To  the  page  and  volume  as  referred  to 
in  the  old  Index,  the  names  of  the  cases,  the  page,  and  volume  of  the  English 
Reporter  have  been  added ;  thus  trebling  each  reference,  and  rendering  almost 
impossible  the  existence  of  any  serious  error.  The  titles  of  Agency,  Contract, 
Criminal  Law,  Evidence,  Executors,  Landlord  and  Tenant,  Partnership,  Plead- 
ing, Railicay  Companies,  Vendor,  and  Wills  are  some  of  those  which  have  been 
most  amplified,  and  to  which  particular  attention  is  invited.  The  work  will  be  found 
of  the  first  practical  importance  to  those  who  have  the  English  Common  Law  Re- 
ports or  the  original  English  Reports,  as  well  as  to  those  who  have  neither,  but  are 
in  want  of  a  safe  and  reliable  guide  to  a  large  body  of  the  best  legal  authorities. 

"The  Tvork  is  very  well  done,  the  arrangement  being  such  as  is  readily  understood,  and  the 
results  of  the  cases  being  indicated  with  brevity  and  precision.'' — Law  Reporter,  January,  1857. 

"  The  unmistakjable  mark  of  systematic  and  intelligent  labour  meets  the  eye  on  every 
page." — Legal  Tnte'ligencer,  December,  1856. 

"  We  do  not  hesitate  to  commend  the  labours  of  our  friends  Messrs.  Biddle  and  McMurtrie  to 
the  earnest  consideration  of  the  profession,  feeling  quite  sure  tjiat  the  inquirer  into  the  Common 
Law  authorities  from  1813,  will  not  be  disappointed  in  readily  finding  the  very  case  or  point  he 
here  seeks." — Laio  Register,  January,  1057. 

We  annex  a  specimen  of  the  Index. 
BILLS  OF  EXCHANGE  AND  PROMISSORY  NOTES. 

I.  Form  and  obligation  generally.  X.  Protest. 

(a)  What  is  a  Bill  of  Exchange.  XI.  Notice  of  dishonour. 

(6)  AVhat  is  a  Promissory  Note.  (a)  Notice  by  any  party  accrues 

(f)    Place  of  making.  to  benefit  of  all. 

id)  Place  for  payment.  (6)   Who  entitled  to  notice, 

(e)    Parties  to.  (c)    Due     diligence    in     giving 

(/)  Other  matters  relating  to.  notice. 

II.  Alteration  of.  [d)  Manner  cf  giving  notice. 

HI.  The  stamp.  (e)    Form  of  notice. 

IV.  The  acceptance.  (/)  Proof  of  notice  of  dishonour. 

V.  Presentment  for  acceptance.  [g)  Wantof  notice,  how  excused. 

VI.  Acceptance  supra  protest.  •  XII.  Bankers. 

VII.  Transfer.  (a)  Liability,  where  taking  lost 

VIII.  Presentment  for  payment.  or  stolen  note. 

[a]  Generally.  (6)  Payment  of  forged   bill   or 

(6)   Time    within    which    Bills,  '                     check. 

Notes,  and  Checks,  must  (c)    Paymentof  checks  and  bills, 

be  presented.  [d]  Liability  and  duty  in  other 

(c)   Plo.ce  at  which  presentment  respects. 

must  be  made.  (e)    Lien  of  bankers. 

((Z)  The  hours  witliin  which  pre-  (/)  Interest. 

eentment      for      payment  [g]  Appropriation    of    bills    or 

should  be  maile.  notes. 

[e]   Days  of  grace.  (//)  Otlicr  matters. 

IX.   Payment.  XIII.  Consideration. 

(a)  Restrictive  indorsement.  (a)   lllcj^al  consideration. 

lb)    Notice  of  application  of  bill  (//)   Want  of  consideration  gen<J 

to  a  particular  account.  rally. 

c)  Payment  for  honour.  fc)   Acc(mimo(lation  ]mper. 

d)  Evidence  of  payment.  \d)  Proof  of  consideration. 


BILLS  OF  EXCnANGE,  I.  (a),  (b). 


{c)    Pleadinjjjs.  (/)  Trover   for    lost   or   stolen 

XIV.  lleleuse  of  parties  to  bill  or  note.  l>ill  or  note. 

(a)  Givinj:;  time.  (ff)  Who  may  be  sued. 

(b)  How  acceptor  or  maker  dis-  (A)  Affidavit  to  hold  to  bail. 

charged.  (/)    Debt. 

XV.  Satisfaction  of  bill  or  note.  [k)  Trover. 

XVi.  Proceedings  upon.  (/)    Pleadings. 

(a)  Wlio  may  sue.  (/n)  Evidence. 

(b)  Recovery  where  note  or  bill  (/t)  Competency  of  party  to  bill 

overdue.  or  note  to  be  witness. 

(c)  Recovery  where  bill  or  note  {o)  Amount  recoverable. 

lost  or  stolen.  (p)  When  party  may  resort  to 

(d)  Rccovcrybybona  fide  holder  original  consideration. 

of  lost  or  stolen  note.  {q)  When  recovery  may  be  htui 

(e)  Recovery  of  proceeds  of  lost  on  common  counts. 

or  stolen  note  or  bill.  XVIL  Other  matters. 

I.    Form  /Vnb  obligation  generally. 
(a)  WuAT  IS  A  Bill  of  Exciia.vge. 

Instrument  dra-s-n  pavable  on  a  contingency,  not  a  bill.  Palmer  v.  Pratt,  *ix.  53S ; 
2  King.  185.     Ralh  e.  Sarell,  svi.  422 ;  I  D.  &,  R.  33. 

Instrument  treated  as  a  bill,  where  an  obviously  supplied  omission  is  made. 
Phipps  V.  Tanner,  xxiv.  G69  ;  5  C.  &  P.  4S8. 

An  order  to  pay  money  "provided  certain  terms  are  complied  with,"  not  aviilable 
a>  a  bill.     Kingston  i\  Long,  xxvi.  308  ;  4  Doug.  9. 

The  order  of  time  in  which  the  names  of  the  drawer  and  acceptor  of  a  bill  are 
placed  upon  it  is  immaterial.  Molloy  v.  Delves,  xix.  617  ;  4  C.  &  P.  492.  S.  C.  xx. 
194  :  7  Bing.  428. 

Bill  may  be  accepted  and  indorsed,  before  drawn.     Schultz  v.  Astley,  xxix.  055  ; 

2  B.  X.  C.  544. 

But  a  blank  acceptance  for  a  certain  sum,  altered  by  the  drawer  before  drawing 
iato  a  smaller  sum,  is  not  a  (V/awing  of  the  bill  for  the  sum  expressed  in  the  accept- 
ance.    Baker  v.  Jubber,  xxxix.  724 ;  1  M.  &  G.  212. 

Words  "  value  received"  not  essential  to  constitute  a  bill  of  exchange.  White  v. 
Ledwick,  xxvi.  454  ;  4  Doug.  247. 

A  paper  containing  a  request  for  the  payment  of  money,  but  not  purporting  to  be 
made  by  one  having  a  right  to  call  on  the  other  to  pay,  is  not  a  bill  of  exchange. 
Little  V.  Slackford,  xxii.  498 :  1  M.  &  M.  171. 

There  must  be  a  drawer  to  a  bill.     Vyse  v.  Clarke,  xxiv.  626 ;  5  C.  &  P.  403. 

Instrument  drawn,  payable  to  drawer  or  order  at  a  particular  place,  without  being 
addressed  to  any  person  by  name,  if  afterwards  accepted  by  one  at  the  place  where 
made  payable,  may  be  declared  upon  as  a  bill  of  exchange.  Gray  v.  Miliier,  iv.  361 ; 
8  Taun.  "739. 

Bill  at  sight  is  not  a  bill  payable  on  demand,  within  exception  in  stat.  22  G.  3,  c. 
49.     Jani?on  v.  Thomas,  xxvi.  276  ;  3  Doug.  421. 

Drawn  payable  ninety  days  after  sight  or  when  realized  is  not  a  bill  within  custom 
of  merchants.     Alexander  i\  Thomas,  Ixxi.  332 ;  16  Q.  B.  333. 

Acceptance  in  blank  for  drawer  and  payee's  name  not  a  bill.  Stoessiger  v.  Rail- 
way. Ixxvii.  548  :  3  E.  &  B.  549. 

'•  Fifty-three  days  after  date  credit  A.  or  order  500?.  in  cash  on  account  of,"  signed 
bv  manatring  director  of  company,  is  a  bill  of  exchange.  Ellison  v.  Collingridge, 
l£wi. :  9'C.  B.  570.  "       . 

Dividend  warrant  not  negotiable.     Partridge  v.  Bank,  Iviii.  396 ;  9  Q.  B.  396. 

Exchequer  bills  are  negotiable  passing  by  delivery.     Brandao  v.  Barnett,  liv.  518 ; 

3  C.  B.  519. 

Statement  of  deposit  of  leases  as  securitj'  in  the  body  of  the  note  does  not  affect 
its  negotiability.     Fancourt  v.  Thorne,  Iviii.  310;  9  Q.  B.  311. 

Instrument  in  form  of  note  with  address  in  the  corner  and  accepted  by  that  party, 
may  be  treated  as  his  acceptance  or  the  note  of  the  drawer.  Llovd  v.  Oliver,  Isxxiii. ; 
L-i  Q.  B.  471. 

(&)  What  is  a  Promissory  Note. 

Not  necessary  that  a  promissory  note  should  be  in  itself  negotiable.  Rex  v.  Box, 
\.  635  ;  6  Taun.  325. 

Ii  is  sufficient  that  it  is  a  note  for  the  certain  payme'Jt  of  a  sum  of  money,  whether 
ae<:i'tiable  or  not.     Ibid. 


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